Whitaker v. Burhans 65 N.Y. 559

Tjerck D. W. Whitaker, Respondent, v. Charles Burhans, Appellant.

(Argued January 5, 1875;

decided May term, 1875.)

This was an action of trespass. The locus m quo was certain flats or fishing grounds upon the Hudson river, below the mouth of Esopus creek. The alleged trespass consisted in entering upon the flats and driving stakes for the purposes of drawing nets, etc. Plaintiff claimed under a patent granted by George III, King of Great Britain, to one Hugh Patrick, dated January 16, 1768. The question whether the locus m quo was embraced in the description in the grant was contested on the trial. The court directed a verdict for plaintiff. The judgment was reversed simply upon the ground that the question as to whether the locus m quo was included in the grant should have been submitted to the jury. Upon the other questions discussed, a majority of the commission did not agree.

John A. Van JEtten for the appellant.

If. If. Bchwonmaher for the respondent.