Jackson ex dem. Sparkman v. Porter. During the late war Ware regained the possession of the premises, and still continues in possession. A map of the premises came up with the bill of exceptions as referred to on the trial, but was left entirely unexplained or verified by testimony. A lot of 581 acres extending above fort Schlosser to a stream called Gill creek, and thence down about half way to the falls, was marked on the map as "the present farm." Next below this was laid down Porter and Barton's lot of 100 acres, extending about one third the remaining distance to the falls. SAMUEL M. HOPKINS and R. BEACH for the plaintiff, contended, 1. That the possession of John Stedman and those under him, with continual acts and constant claim of ownership from 1764 until 1806 were sufficient to raise the presumption of a grant in fee from the government, or a confirmation of the Indian deed," and that this should have been left to the jury. 2. That if the Indian grant was never ratified by government, it was sufficient to give colour of title, so as to create an adverse possession in those claiming to hold under it, which was a subject for the jury.b 3. That the possession of Ware having been wrested from him forcibly by the defendant, without any proof of title, the defendant cannot now be allowed to show title, but must first a 2 Phil. 187. ; 11 John. 509.; 10 John. 377. 380.; 3 John. Ca. 109. 128. 28.; Cowp. 217. 102.; Selwyn, 1089.; 2 Saund. 175, 176. n. 2. ; 3 John. 270.; 2 John. Ca. 324.; 7 John. 63.; 12 John. 245. 488.; 7 Wheat. 105. 109.; 13 John. 513. 376 503.; 1 Caines, 358.; 4 John. Ch. 1. 298.; 5 Id. 545.; 8 Wheat. 598. 603.; 4 John. 211.; 11 East, 493. 280.56.; 12 Coke, 4, 5.; Buller, 74. ; 3 Term, 157.; 9 John. 170. b 8 John. 388.; 7 Id. 505.; 3 John. Ca. 118.; Adams' Eject. 48.; 9 John, 102.; 11 East, 488. 493.; 8 John. 388.; 17 Id. 217. ; 20 Id. 183.; 18 John. 355.; 13 Id. 318. 406. 313.; 1 Caines, 358.; 2 Id. 183.; 2 Rolls Rep. 152. Jackson ex dem. Sparkman v. Porter. restore the possession, and then resort to his right. That the act of the state of New-York did not justify the dispossession; 1. Because it does not relate to this property; 2. Because no connexion is shown between the defendant and the act; and, 3. Because the act is unconstitutional and void. 4. That Ware having remained on part of the property, or returned to it after he was dispossessed of the house, was evidence to be left to the jury, of a virtual continued possession to the present time. 5. That the ancestor John Stedman, was a settler within the precincts and jurisdiction of Fort Schlosser, and as such his title and possession was protected and confirmed by the second article of the treaty with Great Britain of the 19th of November, 1794, and that the treaty ought to be construed to confirm such an estate as Steadman then claimed, viz. a fee. 6. That it should have been left to the jury to say, whether the defendant was not without any title, and a naked trespasser, the evidence of his having a patent and lease being very unsatisfactory; and if so, the prior possession of the plaintiff would have entitled him to a recovery.f S. JONES and S. A. TALCOTT for the defendant, controverted these points, and contended, 1. That the plaintiff could not recover upon the prior possession of Stedman or Ware; and under the proof in the case, c Act of N. Y. 6th April, 1803, 3 vol. W. & S. ed. 365. (26th sess. ch. 106. s. 17. ;) Act of 1804, (27th sess. ch. 111. s. 6. ;) Act of 1806, (29th sess. ch. 110. s. 4. ;) 11 John. 504.; 12 Id. 488. 365.; 2 John. Ca. 324. 422.; 3 John. Ch. 129.; 18 John. 45.; 7 Wheat. 118. 59.; 3 John. Ca. 118. 128.; 2 John. 22; 9 Coke, 96. 214. 218.; Co. Lit. 277 a.; 10 Coke, 48 a.; 2 Rolls ab. 164.; Saville, 7.; 3 John. 386.; 13 Id. 291.; 16 John. 142. ; 2 John. Ch. 162.; 4 John. 150. ; 2 John. 24.; 4 Id. 211.; 11 Id. 504.; 13 Id. 335. d 3 Bl. Com. 9. 169. 171. 175.; Co. Lit. 277.; Lit. s. 417.; 8 Cranch, 250. e 1 Laws U. S. 212.; 4John. 80.; 7 Wheat. 206. n. a. ; Co. Lit. 243. ; 3 Wil.516. f Cro. Eliz. 437.; 2 Saund. 111.; 9 John. 174.; 10 Id. 338; 2 Id. 22.; 3 Id. 388.; 4 Id. 202.; 3 John. Ca. 128.; 20 John. 183.; 4 John. Ch. 53, Jackson ex dem. Sparkman v. Porter. that it ought not to have been left to the jury to make any inference or presumption in favour of the plaintiff. 2. The plaintiff himself, showed on his own evidence, that his lessors had no title which a Court could recognise under the laws and public treaties, of which they are bound officially to take notice; and there was nothing sufficient under the circumstances to be left to the jury, to warrant a presumption of title in them, better than the original deed under which they claimed, and which was itself illegal and a nullity; and if not a nullity at first, has been subsequently avoided by the cession of the territory comprising the premises.h 3. That the title of the Stedmans was never such as to come under the protection of the treaty of 1794, and Susan'nah Sparkman, being an alien, could not take.i 4. That the premises were ceded to the crown of Great Britain, and the state of New-York succeeded to their ownership. 5. That there had been no lapse of time sufficient to bar the right of the state, and this right Porter acquired, as proved by his own declarations, called for by the plaintiff. And if that were not sufficient proof, still title in the state, when shown, must be officially noticed and acted upon by the Court, although the contest is between third persons; and such title may be set up by the defendant to protect his possession, notwithstanding the prior possession of the Stedmans.' g 1 John. 44.; 4 Id. 150.; 13 Id. 235.; 11 Id. 504. 509.; 11 East, 488.; 5 or 3 Mum. 334; Cowp. 595. 597.; 1 John. Ca. 123.; that a forcible dispossession is not enough of itself to recover in ejectment. h 2 Conn. Rep. 607. 614. 423.; 11 East, 56. ; Id. 279.; 11 Id. 488.; 8 Id. 248.; 1 Bos. and Pul 400.; 12 Ves. jun. 239. 266. 269. 270.; 2 Cranch, 180.; 6 Binney, 416.419.; 10 John. 417.; 7 Wheat. 107.; 1 Caines, 90, 91.; 5 Taunt. 170.; Cowp. 595; 1 Term, 428. 431.; that presumption of a deed is matter of law. ; 1 Har. and M'Hen. 432, 433.; 3 East, 294. 302.; 8 East, 249. 264. 266. as to presumption. i 8 Wheat. 543.592.; 4 John. 165.; 12 Id. 365. as to the effect of an Indian grant. k 4 Binney, 218.; 5 Serg. and Rawle, 266.; 4 Yeates, 537. 7 10 John. 417.; 11 Id. 376.; 16 Id. 214. ; 2 Cranch, 184.; 5 Mum. 334. ; Run. Ejec. 14.; 2 Cranch, 184. as to stat. of limitations against state or individuals. Jackson ex dem. Sparkman v. Porter. THOMPSON, J. THis case comes up on a writ of error to the District Court of the Northern District of this state. And the errors complained of arise upon a bill of exceptions taken to the opinion of the Court, ordering the plaintiff to be nonsuited. The range of argument taken at the bar, has led to the discussion of some questions which, according to my view of the case, do not necessarily arise, and which in the course of this opinion will be only cursorily noticed. The right or title upon which the lessors of the plaintiff rely is derived from John Stedman. And if he had any estate which could descend to his heirs, it is not to be denied but that Susannah Sparkman is entitled to it. The first inquiry then which seems naturally to arise is, what was the interest of John Stedman in the premises in question? The bill of exceptions is extremely lame and uncertain as to the location of the premises in question. It is, however, very certain, that the defendant is in possession of some land, embraced within the claim of John Stedman, and if that claim has been established as a legal, valid, and subsisting right, the plaintiff was entitled to a verdict, and was improperly nonsuited. The claim of Stedman covered about five thousand acres of land, comprised within the following bounds: Beginning at a place called Devil's Hole, some distance below the falls of Niagara, and running from thence to Gill creek, then down the creek to the Niagara river, then down the river to the place of beginning. It is not very satisfactorily ascertained when Stedman went into possession of any part of the land comprised within his claim. One of the witnesses (Humphrey) says, that he was there in the year 1769, had a house, stores, and stables, and about thirty or forty acres of land improved. But he did not at this time claim the whole tract Jackson ex dem. Sparkman v. Porter. above-mentioned, nor did that possession and improvement extend to any part of the land now occupied by the defendant. This possession was near fort Schlosser, and Stedman was there having the charge of, and contract for the portage both of the king's stores and private property, from fort Schlosser to the place where Lewiston is now situated. There is no evidence that at this time Stedman claimed any title to the land. He had a mere naked possession; and the ground on which he afterwards rested his claim, shows that he could not then have pretended to claim any title. The testimony, as to the actual possession of John Stedman, is extremely loose and unsatisfactory. It is however, pretty evident, that most of his improvements were upon what is now called, (and laid down upon the diagram accompanying the bill of exceptions,) the Stedman farm, containing five hundred and eighty-one acres; and which is now in the possession of Ware, as the tenant of the lessor of the plaintiff. The house which Stedman built in the year 1771, was upon this farm, about one hundred and fifty yards below fort Schlosser, and about one mile from the falls where the defendant lives. In 1772 the improvements were small, only about one hundred acres cleared; which clearings were from time to time enlarged, but how far they touched the land now occupied by the defendant, is left very much in doubt. It is unnecessary however to pursue this inquiry; for if the right to recover was placed upon possession alone, the nature and extent of that possession, and whether adverse or not, ought to have been submitted to the jury. But John Stedman did not put his claim upon possession, but upon title derived from the Indians. Possession accompanied with a claim of ownership in fee, may be deemed prima facie evidence of such an estate. In such case it is not the possession alone, but that it is accompanied with the claim of the fee, |