The premises lie in lot No. 40. which belongs' ¿o the lessor of the plaintiff. The defendant* who claims under title to lot No. 41. contends, that the line run by Bleecker, as the division line between those lots, terminated at the pine tree. But the line must be continued to the river, and the testimony fully establishes a continuation of a line of marked trees. Bleecker’s map has never been considered as conclusive, in opposition to the true lines, founded upon his actual survey. In all the cases, hitherto before the court, respecting the Hosick patent, the map and the survey of Bleecker were assumed to agree, and it was Bleecker’s survey that the courts have so repeatedly sanctioned. (2 Caines’ Rep. 177. 2 Johns. Rep. 297. 5 Johns Rep. 496. 506.) On the part of the defendant, there is, however, a strong ease of adverse possession made out. This possession has been continued for nearly 40 years,, and would be conclusive, unless the agreement said to have been made in the year 1790, between Jadwin, Chase and Jacobs, should be deemed sufficient to take the case out of the statute of limitations. By that agreement, the possession was to be delivered to Jadwin, if he would maintain a title, and Jadwin submitted his title to one Freleigh, who decided against its validity. It was afterwards agreed to be submitted fey C. Sands, but this agreement was never carried into effect. The decision fay Freleigh was 19 years before the trial; and it is reasonable to presume that Jadwin, at that time, had abandoned his title. This question of adverse possession, ought at least, to have been submitted to the jury.
A new trial must be granted with costs to abide the event of the suit.