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 A SERIES OF COMMUNI^ffiP^S 
 
 PUBLISIIKU IN THE 
 
 KINGSTON HERALD 
 
 BETWEEN THE YEARS 1839 AND 1844 
 
 ON THE .SUUJECT 
 
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 OF THE 
 
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 LAW OF TllJE liANDt 
 
 K S T A B JL I t3 11 1 *f t^ THE 
 
 1 TIEOE BOUILBAMMS A^E^ LIHES OF SUMTEY 
 
 ON A PERMANENT BASIS, AND THEREBY 
 
 SECURING THE 
 
 RIGHTS OF LAND IN THE ORlUllNAl PATENTS 
 
 To tUc lioyallats and tUeii Hcltm* . - i q ,-^*^x 
 
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 KINGSTON ; 
 £Jp AX THE HEKAL.U OFElCii 
 
 'l^ir^\ 1843. 
 
REVI), ,fOKK sri' 
 
 i'AI' r. .lOUK .Jf^KFI'll HI-iilC'T; 
 
TIEVI). .fOHK K-rVAKT. 
 
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PREFACE. 
 
 ■i 
 
 The AiTTiiOR o{' \U) followino; Commnniratlons under the sig- 
 nal iire of Mrntor," luis endcavori'd, allcr miicli labour and ro- 
 scarcli, lo arrive al (lie adjusduenl and setllement oi" a tlisputed 
 (jueslion, respeel'mg boundaries, Lines of Survey, and Patent 
 lii,!;lils, founded on facts, in (he early history of tiie country, jnid 
 oil liic Statute Law of (he Province, or Law of (he Land, lie 
 has mucli satisfaction in statinii; his opinion in su[)port of Patent 
 Jlii^hts, to (lie rejection of the tilh; of aihcrse ])oss('ssion, or ille- 
 gal and usuri)ed occupancy. This tith', if adnii((ed (o he a rij^ht, 
 Would suhvert true houndaries, and destroy Patent Riglits, would 
 invest spoliation and injustice with (he charac(er of legal riglit and 
 Just possession, and would violate (he faith of Government in the 
 patents granted to (he Lovalis(s and their heirs. 
 
 This disputed quosdon has, in (he lapse of many years, from 
 1792 (o 1843, the present period, given rise to a mul{i(ude of hiw- 
 suits in the Courts of Justice and Law, and has been attended 
 with continued contention and accumulated expense. The Courts 
 of Justice and Law have, in many instances, decided cases involv- 
 ing (he disputed (piestion of patent rights and (he tide of adverse 
 ])()ssession or illegal and usurped occupancy, The Board of Com- 
 missioners of Boundary Lines, established by law in (he year 
 1837-1838, have also heard and determined all cases submided (o 
 (luiir cognizance and audiority, unrestricted by the plea and title 
 of adverse possession, or illegal and usurped occupancy, and in 
 accordance with the S(a(ute Law (»f (he Province, or Law of (he 
 Land. This law, however, has been, thnnigb the omission and 
 culpable inattendon of the Legislature, allowed to expire. 
 
 The audior, under the signature of " Men(or," is encouraged to 
 offer to (he public (he series of Communications under the tide of 
 Me.vtoriana, in (he contidon( e\])ectation and hope that from 
 the information con(ained in (he subsequ(Mi( pages, (he Juries, or 
 men wlio sliall be summoned to coni])ose (hat body, will thereby 
 be enabled to understand and appreciate the high importance and 
 general interests of (he disputed question. They will thereby 
 become conipetcn( (o co-op(M'a(e with the Courts of Justice and 
 Law, and j)roi'essional men in hearing and dctcMinining all cases 
 subniitt«Ml to them, on the basis of Patent Kjohts ;uid (he Law of 
 (he Land, to the rejection of adxersc possession or illegal and un- 
 just occupancy. 
 
 Thk Author. 
 
% SIJi^IITIARl 
 
 Of llio Prorroiliiinrc; of ilip nonnl o| |?(Min(l,Try F.inr' Comtniflnionnri; in i!ji 
 cnRO nf (lippiito between llio Vononltlo (Jooi-ffo Okill Stiinrt, nwtior of Lot 
 No. 2J, in tho Int ConrPRsion of thn TinvoRliip of Knighton, and flw^ Hnvn 
 rond William l\f. Ilcrchmor, owner of f.of No. '2'-\ in tlio nfoioeaid C'otirpp- 
 fiion, occnpios llio llrpf place or part of tho followinjj; p.^{:;o^J, ami in wliich 
 n (lovolopod Iho powor frrantml to thom liy flm r.f',tTiHl.ituro, in llio provi- 
 fiiona of tlio kSfatufo Ijavv 1st Victoria, HM7 and IRJH, (soo ApptMidi.v); 
 and wliich power ihoy oxorcisod, nnroHtrictod liy the tillo or ploa 
 of adverse possepfion, or illoftal and ntyn.st occupancy. l?y tlit'ird(>- 
 oifiion tho Patentee, or Heir at Law of I,ot No. "Jl— the Venerable (Jeor/ro 
 Okill Stnart — was restored to the posscnsion of hin j nut portion of land 
 withhold from him by the Reverend William AI. Ilorchmer, Uiiough ille{,'a|[ 
 and unjufit occupancy. 
 
 Tho necond part embraces tho Procoodinofs of tho Bonndary r.ino Com- 
 missioners in determining tho Eastern Side liine of Lot No. 2\, to the cv- 
 clusion of occupants by ufinrpod possepsion. 
 
 Tho third part ond)raceH the Foriort of ('omnuinicationB on the trnc 
 BoundariCR of tho Township and Town of KingHlon, published in the 
 " Kimrslnn IJrnihV between the years iH.'iO and IHIM. 
 
 And the fourth and la.^t part contains the innertion of a series of Com 
 nninications nn Patent Riohtp, and on the Statute l,aw ol Upper Canada^ 
 or Law of the Land, pnl)li.shpd in the " f(iii<jsf(») /Irm/d" between tho 
 voar.s 18.30 and IHH. 
 
TWK riRST I'Airr. 
 
 V 
 
 I'A rU ACT FROM Till-: UR(()KI) OF IIIE HOIINDA- 
 \i\ r.lNR COMMISSIONKUS OF TIIF MIDLAND 
 DISTUICT. 
 
 Kinosloii, 11 th April, 1839. 
 /,ols ,]\*os. 23 and -li first, Concession of Kinf^slon. 
 
 TIh' Honrd mcl. 
 
 I'liEsEVT — Isanc Frozor, Orion TI;inro\,an(l Alexander Camj)- 
 bell, Fs(jnires, A|>ril lllli, 1S;»0, pnrsiiaiit lo adjonrninent. 
 
 The Iveverond (ieoro;e Okill Sluarl prosonfed a Memorial rlaim- 
 ino; llie said conleshMJ or disputed Line lo lie snrveycMJ, aoreeably 
 (o llie A<l 50 rJeo. 3, cha]). II, ))aridlel willi T.ol No. 1 in llio 
 said Con«"ession, in opposition (o wliieh llio Reverend Mr, Hereli- 
 mer ehuin'Ml llial lli<^ Line now di\ idinu; llie said T^of he eslah- 
 lished,as il had heen once eoidirmed jieretofore hy a Judi^nient of 
 ihe Court of Kin<>\sI3uneh. 
 
 The Memorial of the Reverend George Okill Stuart. 
 
 To the Ifonourahle Isaac Frazcr^ Or ton Jlancox^ and Mcxander 
 Campbell^ Esqnires, Jioundary Line Commissioners for the JMid- 
 land District. 
 
 Tilt" Memorial of the Reverend Cieoro-e Okill Stuarl, *>f ihe Town 
 
 ofKinL;slon, 
 
 Respect FULr.Y Representetii — 
 
 Thai the late R<'verend Doctor John Stuart, who remov- 
 (rd with his family lo this Pro\ in< e from Montreal, Lower Cana- 
 lia, in tin \-ear of our Lord 178'}, ;ind sciih-d upon Farm L<»t No. 
 
u 
 
 MKXrolU ANA 
 
 ll'art 1st. 
 
 01, in lli< I'll t ( "oiK I'ssion .>( tlic T(»\vnslii|i ol KiiiuNion, in llic 
 yo!«r 178(1 ; nlif.iitud ;i(J>;inf or Dccdol tlu' same iVom llu'Clovcrn- 
 inonf in ilio year 1700. Tliis r'iuni or Lot o| Laiid rmltraaMi 
 Two llinnlicd Ant-s of Land, and was surveyed Iiy I)r|)iily Sur- 
 voyor (Jcncral Collins, (Voin (incbc*-, in tlio year 17H3, and |»os<s 
 nnd Itonndarics were [daiilod and lixed in I'lonf on llic (iist Con- 
 rossion, and from wliich llio courso of llio Side Lines was intend- 
 ed to have been a duo ma<;nelie North course. The West Side 
 Line of [,o( No. 21 or East Side Line of Lot No. 23, was re- 
 surveyed aceordini; to the rompass helween the years 1790 and 
 1795, liy (Captain John Joseph llenhmer and the Reverend Doe- 
 tor John Sluarl, the respeetive owners of Lots Nos. 23 and 21. 
 Hy this survey it was ascertained that from the attraction or vari- 
 ation of the needle, and other causes, tlic Side Line ])etween Nos. 
 23 and 21 could not be run so as to aoTee with \\w original sur- 
 vey by De))Uty Surveyor (Jenerai C^ollins, and to place the Line 
 on a permanent and unalterable basis satisfactory to both parties. 
 The variation in the surveys created no contention between tlio 
 late Captain Ilercbmer and the Reverend Doctor John Stuart. 
 And thus the Side Line between Nos. 23 and 24 rested on a va.- 
 ryinuj and uncertain basis, and still continues in that state. 
 
 In the year 1817 the late Lawrence IJercbmer, son of the late 
 Captain Ilerelimer, employed a Dejiuty Surveyor by tbe name of 
 Ryder to run the Side Line betw^ceu Nos. 23 and 21, for bis satis- 
 faction, and in consequence of an encroacbmont having been 
 made, as be supposed, <m bis land by the late Benjamin Whitney, 
 Esquire. Tbe Line of Survey was run by Mr. Ryder, but it was 
 not adopted by the late Lawrence ilercbmer, Es(juire. After the 
 death of Lawrence Ilercbmer, Es<|uir<\ in tbe year 1819, John 
 Kirby, Esquire, Executor to tli(> Estate of Lawrence Flercbmor, 
 Esquire, and Cuavdian to tbe heirs, then Minors, employed Cap- 
 tain McKenzie, of tbe steam boat F'nmtenac, to run tbe Side Line 
 between Nos. 23 and 21 in th<' y«":>r 1.S20 <m 1821. Tbe mode 
 of Survey in runninu; the Sid<> Line was thai of ascertainin<j[ a 
 
 1 
 

 , 
 
 Piirt Isl.l MKNTOUI.WA. 7 
 
 Norlli < our.sc, iiul Uoiu (In couipiiss, l»iil liy ohsrrviilion (»| ilit 
 Mars, that is asli(»ii«>miLally, iind (his Linr i»ian(«.'il l»y (In- C'ouri 
 ot"Kinu;'s |{(.iirli, in jdacc ol (lie iiiiiL;in.(ir Nuilh, is llio IJiie <»< 
 Survey Ity whith (lie iiuvircud Williiiiu llcitliincr holds possr's- 
 8ion (»!' TweiUy-ono Acres ol Laud, more or less, heloiigiiii:; to 
 Farm Lo( No. i>l, lo the loss and detriment of the Keverend 
 Ce()r«;o Okill Stuart, the Heir at Law to Lot No. 21, hy I'atenl 
 from the (Government. 
 
 From the uncertainty and impossihiliiy of obtaining a correct 
 Side Line that would he ilue North, as exprewsed in tlie Deeds 
 or Patents from the Government, there arose contention and dis- 
 putes between the owners of Land generally, in the Townshi[) of 
 Kingston. In order to remedy these evils and to prevent litiga- 
 tion at Law and consequent expense, recourse was had to Legis- 
 lative interference, and a Provincial Statute or Law wa passed 
 in the }car 1798, "an Act to ascertain and establish on a perma- 
 nent footing the Boundary Lines of the dilferent Townships of 
 this Province" ; and also, a furtlicr Act was passed in the year 
 1818, extending the provisions of the preceding Act, and making 
 provision for the Survey and settlement of Side Lines, and wliich 
 in the words of the Statute is as follows: "Farther to regulate 
 the manner in which Side Lines are hereafter to be Surveyed." 
 
 By reference to sections of the Statute of 1818, Nos. 2, 3, and 
 4, (see Appendix) the j)ermanent basis or footing on wiiich Side 
 Lines are to be run, and the Survey to become legal, true and 
 certain, and to settle all controversies and dilliculties between 
 owners of Land, anil to make the Surveys permanent and unalter- 
 able, the legal and (rue mode is clearly and detinilely expressed. 
 
 In virtue and by authorily d these Slatutes, William 11. Kil- 
 born, Deputy Surveyor imder the provisions ol' llic Provincial 
 Laws ol 1708 iind 1818, and by the appoinimeut of tin- Lieuten- 
 ant Governor, was conunissioned lo retrace and run out tin- origin- 
 al Side Line o( No. I, bcJMo the VVr>,t(.n, Uoundarv Line of the 
 
8 
 
 MENTORIANA. 
 
 ¥! f 
 
 [Part lisl. 
 
 Towii^liij) ol Kiiigsloii. Ill '.lie Siiriiig of the year 1838, Mr. Kil- 
 •lorii was eni[)lt»ye(l l»y your memorialist, and lie iiiulertook to run 
 the West, Siiie Line oi Lot No. 21, eonfbrmaldy lo Uie provisions 
 oi' the Statute or Law ol 1818, with a view to the seillement of all 
 controversies and disputes now existing", res[)ecting the Boundary 
 Line between Lots Nos. 23 and 24. 
 
 In order to obtain the quantity ol land included in the Patent 
 from the Government to the late Reverend Doctor John Stuart, or 
 to the Heir at Law, your memorialist, the Reverend George Okill 
 Stuart, prays the interference of your Plonorable Board, in order 
 to obtain possession of a quantity of land occupied by the Reverend 
 William M. Ilerchmer, by virtue of an erroneous Survey, neithei 
 acknowledged by the Statute of 1818, nor in agreement with the 
 magnetic course prescribed in the patent, and which pc»rtion ol 
 land is not within the true and correct limits or Boundary Line of 
 Lot No. 23. 
 
 Your memorialist, after the preceding detail of facts, submits his 
 case to the favorable consideration and tiecision of your Honora- 
 ble Board, and rests the settlement of the Boundary Side Line be- 
 tween Lots Nos. 23 and 24, as jiermanent and unalterable, on 
 the authority of the Statute of 1818, and the legal and correct Sur- 
 vey of said Line by Deputy Surveyor William H. Kilborn, and 
 appeals to your Honorable Bt»ard of Commissioners lor the recov e- 
 iy and attainment of his just and legal rights, being a portion of 
 land held by virtue of an erroneous Line of Survey by the Reve- 
 rend William M. Herchmer, the owner solely of Lot No. 23 with- 
 in its legal and true limits and boundaries. 
 
 All which IS respectfully submitted by your Memorialist, who 
 shall, as in duty bound, ever I'ray. 
 
 (Signed) 
 
 GEORGE OKILL STUART. 
 
 In support of the foiegonig Memorial, llie Tcslimony offered 
 Was as follows : — 
 
Lsl. 
 
 Pail Lsl. J 
 
 MENTOUIANA. 
 
 William II. Kiljjorn, Dcpuly l'n)\imial Surveyor, Sworn, 
 siiys llial li( is in no wise, iiiliMeslcd in the Lands at jnosent in dis- 
 |»ule; tlial. ]jc made Jlic Survey Ixitvveen Lots Nos. 23 and 24 in 
 (lie First Concession oi" the Tovvnslii|) ol" Kingston, agreeably to 
 the Aet ol 1818, by running sai<l Line j)ar.illerto the boundary of 
 said Concession^ that is No. 1, which he is perfectly satisfied is 
 correct, 'riie late John S. McDonald and himself having exam- 
 ined the said Boundary at Lot No. I, and ascertained the same to 
 bear 1 deg. 3 miii. lU sec. West of North, and j)lanted monuments 
 (hereon, under instructions from the Surveyor Ceneral, some time 
 in the year I82C. 
 
 (Signed) 
 
 William II. Kiliiokn, 
 
 Deputy Surveyor. 
 
 .L\MES NiCKALLS, of Kingston, Es([uiic, being Sworn, deposeth 
 ;iiid saidi, (ha( he the deponent was one ot (he |;ersons appointed 
 l»y (he Coin( ol'(^iiar(<.'r Sessions (o esaniine and report on the per- 
 lormance of (he work by Messrs. Kilborn and M«l)onald, in run- 
 ning oil! of (he VVes(ern rxumdaiy Line of the Township of King- 
 ston, under tiieir contrac (. Tiie work was minutely examhied, 
 and a Repoi( niadr of i(s sulliciencv, and upon which thev got 
 (heir pay. The course ol (he boundary in the First Concession 
 was -1 d(M.. 3 niin. lU mc. VVe.^t of the true Meridian as deter- 
 minrd by (lie wmk ol Messrs. Kilborn and McDonald. The 
 work was peilornied under instructions from the Surveyor Ccne- 
 lal, but they have not as yet made an ollicial re]»ort of' the work 
 so done. 
 
 (Signed) 
 
 James Nickalls. 
 
 No farther Tesdmony by either ol the parties. 
 
 The lioaid having heard the Partiis and (he Evidences, and 
 duly coi!sidei(>d (he ina((er in (lifli'ielK e, Do Onler and Direct, 
 (hat (he said Line be(\veen Lo(s Nos. Twcn(v (luce andTwenlv- 
 lour be Surveyed paralhl widi (ht; course of the Western Boun- 
 dary Line of Lot \o. 1 in (lie First Concession of the said Town- 
 shi|) ol Kingston, and (li.ii William II. Kilborn, D(>pu(y Survev- 
 oj, be audiotii'cd (()Siu\(\ die^.iid Line, and plant sutlicient 
 
10 
 
 MENIOUIANA. 
 
 [Pail Ui. 
 
 Stone Monuiiiciiis ul (lie governing points ol liie tunie, ;in«l nuike 
 ii correet plan tlieieol', making the courses tlieicol, bolli aslrononi- 
 icaily and magnetically, and tluU lie shall lleporl to this LJoariJ 
 on or before the (irst day ol" May next, what he shall have tlone 
 in the premises. 
 
 The following Instructions were then issued to the Surveyor. 
 
 Sill, 
 
 You are hereby autlu)rized to make a Sur\t'y of the saiit 
 Line between Lots Nos. 23 and 24 in the First Concessidn ol 
 the Township of Kingston, parallel to the Weskrn Boundary Line 
 of the Township for vsaid Concession, and [)lant Stone Monuments 
 on the same, at the governing ])oints, ;unl return (o (he ('ommis- 
 .-iioners a Plan of the Sur\ey, with (he Magnetical and Astr(»n<»m- 
 ical Courses laid down thereon, on or before t!ie lirst day of May 
 next. 
 
 (Signed) 
 
 Isaac Frazeu, 
 Okton I Ian cox, 
 Alex. Campbell. 
 
 Kingston, 11 ih April, 1839. 
 
 Mem. — The return of the Survey herein directed is Postponed 
 to the twentieth day of May next, by the consent of parties, or- 
 the ap[)lication of the Surveyor, William 11. Kilborn. 
 
 Kingston, May 20tb, 1839. 
 
 Present — I. Frazeu and O. IIancox, Es(piires. 
 
 On this day Mr. Kill)orn should have made his Kcport of (Ih 
 Survey of the Siile Lim- between l^ols Nos. 23 and 21 in the 
 First Concession of Kingston, wlii» li be wa^- n«>l prepared to do. 
 The matter .stands Postponed without a day.. 
 
 (Signed) 
 
 Isaac Frazeu, 
 OuT<.>j\ IIan<o\ 
 
Part l:;t.| 
 
 MKXTOIUAXA 
 
 11 
 
 IJoiUKKiry Comimissidn, Kin'^ston, Oct. f38llt, 1839. 
 Presrnt — I. Fkazei^ ;nul O. JFancox, Esqniros. 
 To rcroivo Mr. Kilborn's llcpoit o| liis Smvoy of tlic Lino bo- 
 twoen Lots Nos. 23 and 24 in tlic First Conrossion of Kingston 
 — VVlien it apiu'nre*! tluit he was not proparod to rctnrn the Re- 
 ])ort. The Hoard direct a note to he written to Mr. Kilhorn, cal- 
 ling his immediate attention thereto; as well as the necessity of 
 makino- \]]c Report of thi; Survey of the Western Boundary of 
 F\int»ston, upon wliich tlie Side Line now to he run is based and 
 i>;overned by. 
 
 (Signed) 
 
 Isaac Frazer, 
 Orton IIancox, 
 
 -1UDGMRNT IN THE MATTER OF BOUNDARY BETWEEN 
 LOTS NOR. 2.M ANO 31, IN TFIE FfR8T CONCESSION OF 
 THE TOWNSHIP OF KINGSTON. 
 
 !T P P K U C A N A I) A , "J Reiwcen the Ven. (George 
 MfDT.ANn District, f Okill Stuart, Claimant, and 
 Pioundarv Commission, C tlie Rev. W. M. IIerciimer, 
 To JVil: J Respondent. 
 
 To all to whom these Presents shall iii any wise concern. 
 
 We, Lsaac Frazer and Orton ITancox, Commissioners of 
 the Midland District, and Alexander Campret.l, Commission- 
 er of the Prince Edward District, Esquires, 
 
 Send (ireettng. 
 
 Wherea application hath been made to ns, the said Bounda- 
 ry Commissioners, (James Nickali.s, Fs(juire, the other Com- 
 missiimcr of the Miilland District, being within the degree of aOin- 
 ily excluded by the A< t,) by the Vencraldc (Jkorgk Okill Stu- 
 /VRT, Claimant, and the Reveren<l William ]\L IIerciimer, Re- 
 "<pondent, re<jui)'in<>, us to fix and detrrnjine lh<' Ibuindary Line 
 
12 
 
 MImMOIUAAA 
 
 ll'ail I si 
 
 l)e(.weon Lois Nos. 23 .m] 21, in iIm Kirsl Coiicrssicn d ili<. 
 Townsiiip orivinnfslon, In tlio said Disliift. 
 
 Now Know Yk, tliiit We, iho snid Commissioiicrs, piirsjinnl 
 to an Act ol' (ho [.(^oishtdiro of llic Province" «.f U|»|mm Canada, 
 passed in tlio first year (.1 I lor Miijosly's Uoi<-ii, onliUod ''An Act 
 to authorize the estahlishmonl of Hoards of IJoundarv Line Com- 
 missioners within llio several Districts ol" this Province ;" and l»y 
 the autliority of the same liaving eausoil (ho said Rosi),)ndon( (o be 
 duly summoned to ai)pcar boforo us, pursuant to said Ac!, and hav- 
 ing heard and du\y considered (he sev(>ral allogalions, as well as 
 tiic evidence adduced by (hem respoclivcdy, touching d.o Line of 
 said Lots — ^ ' ' 
 
 Wc do therefore Adju.lge, Order, and Decree as follows :— 
 That the said Line between the Lo(sNos.23 and 24, in (bo Firs( 
 Concession of the Township of Kings(o,i aforesaid, be Surv(>vod 
 parallel with the Course of (ho VVos(orn r3<.undarv Line of Lot 
 No I in the Firs( Concessicni of (he sai.l Township „f Kino-ston- 
 and (hat (he Surveyor do plant sufficient S(one Monuments';.! (b.- 
 Governmg Points of (be same, givin., in bis diagram (hereof, (h(> 
 Course of sa.d Lino, both as(ron..mically and" ma-neticallv, and 
 ti.at (ho Venerable George Okill S(uar! and !bo UeAcrood VVil- 
 I.am M. Herchmer do pay equally th,.^ Costs in<:m-red in the mat- 
 ter. 
 
 Witness, our Hands at Kingston, (his Kb^ventl. day of April, 
 •n the year of our Lord One Thousand Eight If tnidred and Tbir!v' 
 nine. 
 
 (Signed) 
 
 Isaac Frazkh, 
 
 OrTON flANCOV, 
 
 Alex. Campuell. 
 
 I-" . uoo s„,.,,.s.siv,. w,vl,., ,„„| .s,„„„ M„„„„„:,„, ,„.,.„ „,.„;,,,„, 
 <■" HKM.,no ,,fS„m.y nn, hv Willi.,,, II lull,,,,-,,, IJ,.|,mvS,M- 
 
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 i«> 
 
Part 2(1. 1 
 
 MENTORLWA 
 
 to 
 
 i 
 
 vcyor. By (liis Jtidiimciit Ihr West Sid*' Ltn<' ol Lol Nn. 2[ 
 was plarcd on a pormaiKMil and nnaltiM'ablo hasis, in roniradistinr- 
 lioii lo tlx^ (•iTnn('i>iis, dolV'cliv^' rnaonelic Lino oi Snrvoy rnn lic- 
 (woon tlic yoars 1783 and 1705, and (o iho selling aside of flic 
 aslrononiical Line orSnrv(\y ost;ddish(!d in llio voar 1.S21, hy iho 
 Court of King's Boncli. MoreovMir, hy this JndgiTi(>nl the trno 
 Boundaries and J^ines ol Survey of Lot No. 21 wore established 
 to the removal of Oeeiipants, and to die setting aside of Ihe plea 
 or tith^ of Adverse Possession, and to the securing to the Patentee 
 <)f Government and the Ifeir at Law, tlie Vencral)lo George Okill 
 Stiiart, his just (piantity of Land, l)eing Two Hundred Acres of 
 [^and within Lot No. 21, given in the yeai 17S1 on the faith ol 
 Government, and granted in tiie Patent issued in the year 170G, 
 an«l confirmed hy the .Statute Law of tlie Land 38th of George IIL 
 
 1798, the 59lli of George IFL 1818, and the 1st of Victoria, 1837, 
 
 1.838. (S<^e Diagram in front of Title Page.) 
 
 PART SECOND. 
 
 The V'eneralde George Okill Stuart ])resented the following 
 Mcnnorial, imd the same was received and heard hy the Boundary 
 liine Commissioners at their sitting on the 18th of March, 1810, 
 and is as follows : 
 
 P.XTliACT FROM THE RR(^(>R1) OF THE BOUNDARY LINE 
 COMMISSION OF THE iMinEANl) DISTRICT, IN THE 
 CASE OF THE EASTERN SIDE LINE OR ROlJNDARV OF 
 EOT NO. 24. 
 
 lioundary Meeting, Mardi 18, 18''10. 
 fn the mailer between tlie Vein rahle Geouof, Okim, Sthart, 
 owner of Lot No. 21, in the First Con(«>ssioM of the Township ol 
 Kingston, and lh(> Kespondenis 
 
1 1 
 
 MEN Torn ANA 
 
 [Par! '>.l 
 
 PuFSKNT — Iswc FnA/En, Es(i., Orton Ilwrov: Esq , an«l 
 Mr. James Ntckalls. 
 
 Coorojo Okill v'^tiiart, Claimant. 
 
 Tlio llespoiidenls \v(>ro as jollows : 
 David Alexaiuitir, part of Park Lot No. 1. 
 John \l. Forsyth, |)art of [*ark J.ot No. |. 
 Thomas Miimis, Town l.ol No. 303. 
 Mary Drury, Town Lots Nos. 3Ci, 370, 071 
 Jolm Flanaoan, No. 309. 
 Ilobcrt Tolhert, No. 377. 
 Thomas Kirki)atri(k, No. 370. 
 Jolin Walkins, No. 378. 
 
 STUARTVTLT.F- 
 
 VVillctt, No. 182. 
 
 Elijah JJcach, Nos. 3 and 4. 
 Thomas Brown, Nos. 5, 0, 7, H, i). 
 Mrs. Sansouci, No. 11. 
 
 Smitli, Nos. 13 and 13. 
 
 I J. W. Smith, Nos. 14 and 10. 
 John Clewson, No. 15. 
 Mary Milor, Nos. 16 and 17. 
 Isaac Hull; No. 20. 
 John Quinknn, No. 21. 
 William McLoan, No. 22, 
 Smith P>artlctt, No. 11. 
 
 riCORDVII.LE. 
 
 Augustus Thihodo, Nos. 10 iind 25. 
 James Mcaglier, No. 0. 
 Elijah Conkline, Nos. 7 and 8. 
 
 William Forbes, Nos I, 2, 3, I, 5, 0, 13, II, 15, 10, 17, 18. 
 19, 20. 
 
 y 
 
 
 
 
 
 Pa 
 
 ' j 
 
 J 
 
 
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 Si( 
 
 
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 No 
 
 
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 1 
 
 UIO 
 
I'url 2d.] 
 
 MENTOIUAMA. 
 
 15 
 
 i 
 
 STUAUTVILLK. 
 
 AlJan McLcim, Kaiin l.ol No. 1 West Sulc; Ciiaiul Caluniqui. 
 
 The subject before tlie Board was tlie appTieation of (he Ven- 
 erable George Okill Stuart to have bis Eastern Boundary and 
 Side Line of Lot No. 21, in tlie 1st Concession of the Tovvnsbii* 
 of Kingston, made parallel wifh the Western lioiindary of Lot 
 No. 1, in said Concession, 
 
 The parties whose rights are compromised having been sum- 
 moned and called, the Memorial of the lleverend George Okill 
 Stuart to the Board, was re;id, as addressed, to the Connnission, 
 to wit ; 
 
 The Memorial of the Reverend George Okill Stuart, Claimant, 
 
 IIespectfully Sheweth — 
 
 That your Claimant and Petitioner, Irom a due regaril to 
 his interests and a just sense of his rights, is desirous and anxious 
 to obtain from your Honorable Board, the establishment of the 
 East Side Line of Lot No. 24 in the First Concession of the 
 Townshij) of Kingston, on a permanent footing by n Survey in a 
 line of direction parallel to the course of No. 1, the Boundary 
 Line of the Township of Kingston. 
 
 Your Petitioner is Heir at Law to the late Reverend Doctor 
 John Stuart, and Owner of Lot No. 24, whose Front Boundaries 
 or Posts were planted in the first Survey in the year 1783 by De- 
 puty Surveyor General Collins, under the authority of the Execu- 
 tive Government of the I'rovince of (Quebec. 
 
 In the year 170G the Lieiiliuiint Governor of Upper C. niuki, 
 Colonel Simcoe, was pleased to (onlirni tlie posstssion of said Lot 
 No. 24 to the late Reverend Doctor John Stuart, by Patent, and 
 whose limits were governed by the Posts or Bouiahnies planted 
 in Front in the First Conces,sion of (he Township of Kingston, bv 
 Deputy Surveyor General Collin; , iaid< i die authority o| tji<> E\ 
 ecutive CJov('i-nment ot (^iieber. 
 
1(5 
 
 MEN'rolilANA 
 
 I'iUt 
 
 '), 
 
 'I he Side LiMi;. <i\^*>\ N(i, li Were lUiMMil liy ctiinpass Ik'- 
 iwcrii (lir vciirs l7iS(i iuid 17[)(), liy ;iii iuillioiizcd Surveyor 
 l''it)iu this liillildc iiiid mi< ciliiiii mtulc <>j Survey, arising t'roin the 
 Niirialjoii (>!■ atliaeliini t>l' die iiiai^iietie needle, ihe Widlli vl Jjol 
 No. 11 in die Rear on die Concession Line was eouUacted, and 
 did not agree in exlenl \villi llie distanee hetween llie I'osls oi 
 Uoundaiies in Iront ol' Lot No. 21, and eonsetjuently llie limits 
 or lioundaiies in Uear ol'said Ijot on llie ('oneession Line did not 
 embrace tlie lull j)ortion orcjuantily ofLand ludoKgini;' (o Lot iVo. 
 il, in accordance willi (lie Front Posts ov lioundaries planted in 
 llic lirst SurN<'V in 17.S;^, or with the limits and <ourse descrihed 
 in flic Patent. 
 
 Jn the year IS2\ or ISijiJ, vour l*elitioner, heini:; dispossessed 
 • )1 the Magiietie North Line lietwuH'U Nos. 21 and 23, by a deci- 
 sion ol'the Court ol' Kiii!j;\s Memh, in an Ljectmeiit case, iiistilut 
 ed an action against the late Henry Murney, Estjuire, the ownei 
 of Lot No. 25, and succeeded in the attainment (A' a new I/me. 
 This Line was run by Deputy Surveyor Ryder, on a course sup- 
 posed to be parallel to the Side Line between Lots Nos. 21 and 
 23, ostaldished b\ the Court. 
 
 Your Petitioner is now in [lossessioii of this Line suppvised t<t 
 govern the Eastern limit or Sitle Line of Lot Ni». 2-1 , but it is 
 obvious to your Honorable Hoard that it rests on a \ arying and 
 uncertain basis, and left your I'otitioner, the owner of Lot No. 24, 
 in the tenure of no (rue oi lived lioundary. 
 
 IJy the eipulabh' interl«rence and pisl authority (»f the Provin- 
 ci<d Ltgislature (»1 Ipper ( 'anada, ni enacting a Law, appointing 
 lioundary Line ('ommissioners, and ronfening on them judicial 
 |)Owers, and who aie \n law authorized and i-mpowered, bv cor- 
 lecting errors and deft* (s ni Sui\e\,s, to adjudge to every owner 
 of a Lot of i^and ui the Township ol Kingston its true Limits and 
 lioundaries, by •unning a Line of Survey ot the Side Liiic:> pi;- 
 rallel to the Loi No. 1 in the 'l'own.>|iip o| Kiii«;,Hi>ii, ,ind in ciai- 
 
I 
 
 '$ 
 
 Phi I id. 1 MENTORIANA. 17 
 
 fonnity (o llic Siututos ol" 1798 and 1818; reliel can be obfained, 
 and justice be done to )our Claimant and Petitioner, by the reco- 
 very of a [)ortion or (jiiantity of Land belonging to Lot No. 24, 
 witliin its true limits and boundaries, recognized in the first Sur- 
 vey in the year 1783, and also conHrmed by Patent in the year 
 1790, and now to be established on a permanent footing by a pa- 
 rallel Sur\ey under the direction and authority of your Honorable 
 Board. 
 
 Your Claimant and Petitioner respectfully submits the state- 
 ment of his case to the consideration and decision of your Honor- 
 able Hoard, and prays for relief from wrong and injustice by hav- 
 in«4 an East Side Line or Boundary assigned bv vour Honorable 
 Board to Lot No. 24, in a course parallel to No. I, the Western 
 Boimdary of the Township of Kingston, and parallel to the West 
 Side Line of Lot No. 24, lately placed on a permanent footing by 
 the decision ol your Honorable Board, and granted to the Prayer 
 in the former Memorial of your Petitioner, who shall, as in duty 
 h()un«l, e\er pra\'. 
 
 (Signed) 
 
 CJEORCiK OKILL STUART, 
 
 On the Record of the Commissioners after the altove Memorial, 
 follows the History of the ditlerent Surveys submitted bv claimant. 
 
 A History of ilie First Survey of the 'J'ownship of Kingston, 
 and its Front, by Deputy Sur\eyoi (icneral Collins, under the 
 authority of the Executive (Government of the Province of Que- 
 bec, in the year 1783, and of its tru(> Boundaries and Limits, 
 recognized in the Statutes or T.aws ol 1708 ;ind 1818 of the 
 Pro\incc of Upper Canada. 
 
 In the year 1783, Deputy Surveyor Ceneral C<dlins, under the 
 HHtlioril\ of till' Executive Governmenf of the F^rovin<c of Que- 
 bec, and by m.^truc lions from General Haldimand, at that period 
 
18 
 
 Mi:NroRiA\A 
 
 [Pari 2d. 
 
 Govpnioi nt Qucbrc, Surveyed tlio T.)\VMsl.i|. oi Kiiigslnn, to 
 which \\v iissii;„e(I IJinits or Boiindarios hy planting Stone Mon- 
 uments at the Four Corne-rs thereof; and then proceeded to Sur- 
 vey the Lots in the Front Concession of the Townshii., for the es- 
 tablishment of the U. E. Loyalists, who settled on their Lots in 
 the year 178 1, according to fixed Boundaries or Posts planted at 
 the Corners of the individual and respective Lots in the Survey 
 of 1783. 
 
 In consequence of a conK'Ution or misunderslandiiiir helween 
 Captain Grass, a L(»yalis(, tiic owner and possessor of Lot No. 
 25 in the First Concession of the Township of Kingston, and the 
 Commanding Officer of Fort Frontenac, then Cataraqui, and now 
 Kingston, respecting the Limits of said Lot, and its encroachment 
 on the Common Cataraqui, now the Town of Kingston, an ar- 
 rangement was made for the settlement of the dispute by the inter- 
 fere'Jicc and recommendation of Deputy Surveyor General Collins, 
 with the consent of Captain Grass, and a diagonal Line was run, 
 thus constituting what is now called, and for many years known to 
 be, the Limit between the Township and Town of Kingston. 
 
 This Survey was made by Mr. TutVy in the year 1786, under 
 the authority of the Executive Government of Quebec, and re- 
 .surveved by' Mr. Aitken in the year 1797, under the auth.)rity of 
 the Executive Government of Upper Canada. This Line being 
 run subsequently to the Survey in 1783, was confined to the Lim- 
 its of Lot No. 25, as the Eastern Boundary thereof, and ter- 
 minated at the Post or Boundary o{ Lot No. 24, in Rear of the 
 First or Front Concession, on the South Side of tiie Concession 
 Road, For the relinquishment and surrender of the East Half 
 of Lot No. 25, Captain (irass received two or four hundred Acres 
 of Land in the Township of Pittsburgh, as a reasonable compen- 
 sation for the surrender. It is worthy of notice, that by reference 
 to the Plan and Map of Survey of Deputy Surveyor General CoL 
 lins, in 1783, mid also to the Plan and Map of Deputy Surveyor 
 
 I 
 
 I 
 
 
j 
 
 Pail 2d.\ 
 
 MKMoKiANA. 
 
 19 
 
 Aitkfii, ill I /D7, ilu* 'rowiislii[j of Kingston retuins its original an*! 
 entire Form iis run in the first Survey in 1783, with tlie e\cep- 
 (it)n of the ..lie half (.f Lot No. 25, whose Eastern Boundary 
 i-onstitutes the 1/imit between the Township and the Town of 
 Kingston. 
 
 In the year 1791 the Province of Ujiper Canada was separated 
 from the Province of Quebec, and in the year 1792 Colonel Sim- 
 <;oe assumed the Government of the Upper Province, distinct and 
 apart from Lower Canada. In 1792 the Surveyor General's Of- 
 fice for Upper Canada was established at Newark, and soon after 
 at Vork, (now T*)ronto,) tlie Seat of Government. 
 
 No Patents or Deeds were issued to Owners of Land in posses- 
 sion of Lots by fixed Boundaries in the rtrst Survey between the 
 year 1783 and 1792, by the Executive Government of Quebec ; 
 hut after the year 1792 down to the present year, 1843, Deeds 
 or Patents have been granted by the Government of Upper Cana- 
 da, by which, in many cases, the disagreement of the description 
 in the Di^eds with the Boundaries in the Surveys has produced 
 rontention and law-suits aniimg the settlers, arising from errors 
 and defects in the Surveys. 
 
 In the year 170P,, a Provincial Statute or Law was enacted by 
 the Legislature of Upper Canada, declaratory of the Boundaries 
 of the Township of Kingston, whose limits could only be known 
 from the first and original Survey of Deputy Surveyor General 
 Collins, under the authority of the Executive Government of 
 Quebec. 
 
 In the year 1818, a Statute or Law of Upper Canada v as enact- 
 ed for the purpose of extending the former Law of 1798, and of 
 establishing the Side Lines or Boundaries of the several Lots in 
 the Concessions of the Township of Kingston upon a permanent 
 footing, and recognizing all Boundaries and Posts planted in the 
 first Survey by Deputy Surveyor General Collins, as unalterable, 
 including tlie Corners or Boundaries of the Township of Kingston, 
 
 ) 
 
^0 
 
 VfKN'I'OKIAN A. 
 
 fl»i.ii .M. 
 
 wliirli liy tlie said lalh'i Sliitiilc \v<>ro iilsu jilai til ii|m)|i a |Miiiia« 
 \\**ut looting. 
 
 In thr years IH.il, \^:iH, for llio |)iii|mk«' of rarrviiii> info *IU'( ! 
 tlin Iroal and just provisions of \hv Laws or Sta(iit«'s (I'nnincial) 
 o{ 1798 and IHIH, a F.aw was passed appoint in^i; lionndaiv I^int' 
 ('omniissionrrs, and ronslilutin^ a Hoard, who have judirial pow- 
 ers, and who arc aulliorizod and nnpowcrcd, hy (•orroctintj orrors 
 and defects in Surveys, (o adjudge to o^('ry Patentcr> or owner of 
 a Lot of Land in iho Township of Kingston, its true Limits or 
 Boundaries, and to establish the same on a permanent footing hy 
 a Survey of the indivi(hial Lots in a direction or course paraih'l 
 with the course of Lot No. I in the said Townsldp of Kingston, 
 and in accordance with tlie Bounchiries of the Township planted 
 in the first and original Survey hy Deputy Surveyor General Col- 
 lins, luider the auth«»rily of the E'xecutive Government ofQuehec. 
 From this Historvof the first Survey of the Township ofKing- 
 ston, by Deputv Surveyor General (.'ollins, under (he authority 
 of the Kxecutive of the Province of Quebec, and from the pre- 
 ceding statement of its true Boundaries, recognized and establish- 
 ed on a permanent footing by the Laws of 1798 and 18IS, your 
 Honorable Board have the power to make the paralhd Survey, 
 u\uli'r the direction of an authorized Surveyor, (tf the sev<'ral and 
 respective L»>ls in (he Township of aigston, and lo assign to 
 each and to cverv Lot its full quantity and i)roper projtorlion of 
 Land, bv Side Lines eslahiished on a permanent footing, and thus 
 fulfillino- tiie hi<>h oflice and important trust of vour Commission. 
 Vour Claimant an<l Petitioner submits this docunient of Facts 
 ti) vour Honorable Boanl as a necessary accompanimeiij t.fhis 
 Meaiorial already read before you, and now leaves t'le Prau r of 
 his Petition to \hv favorabje decision of your Honorable Board. 
 Y^tiu- Claimant and IVtilioner shall, as in duty bound, c^er pray. 
 
 (Signed) 
 
 (iFOBGF OKILL STl ART. 
 
 1/ 
 
 1 
 
(I. 
 
 Han 2i\.\ MKMOKI ANA. ^1 
 
 TIIK IKsriMONV TAKKN WAS AS FOLLOWS: 
 
 VVlLLLV.M II. KiLUOHN, DcpHlV SlUVrVOl, Id'illli Svxoiii, Dc- 
 |,„s,.tli — Tliiit lu' (Mnniiu imd Siirvryiii^^ »is a |)«'|Mil> Sni\«'y«>i 
 ill JM'iior IH:i;], ill tho noinlihorliood of Kiiio-.stoii ; was ciiiiiloyitl 
 lo run lilt' Liiu' lictwccn l..»ts !"« and IH, First Coiurssioii ot 
 KinjAslon ; as* ( rtaiiinl llif i unrsc ol" tlu* VV rst Hoiirulary. Some 
 ui his jiarlv wcro immmuis \vl\«» lia<l liccii n|)<»n the original Sur- 
 veys l.y Collins and Aiikeii. Tlu- Line lie prodnrcd liclwt'cii 
 l.ols 17 and IH camt' out al \\\r. Ilrar aJKUil |':iuhl Chains Kast 
 of Collins' l»osl, as lu'iwrtn Lois Xos. 17 and IH in the S<M(.nd 
 ('oncossion. Was «'ni|doycil in lH2;i lo inakr a Survey of Park 
 J.ot No. 1, and was oovcincd in said Survey by int'ormalion giv- 
 en hy iIk' lale John iMMguson and Captain Karl, and from that 
 infornmlion he, Dcpnin-iil, planicd stone Posts at the North-west- 
 erly ant,rle of the said Park I,ot No. 1, then snpjxisrd to he 
 the EasUrn Houndarv of Lot No. 25, Isl Concession. Deponent 
 is satisfied (hat thr Liiu' reeoonized hy (iovrrnnient is the Line ol 
 VVilmot, which Line cuts oil' a part of I'ark Lois Nos. 1 and 2. 
 Deponent in layinj; out the Lots upon Lot No. 2 1, laid out and 
 included tiie aHowance for Street left hy Wiln>ot, called West 
 Street, ;jloii<r wilh the Lots upon \o. 2\. Deponent fi.und upon 
 exarr.ination that the Western Line of Lot N(». 2\ as decided hy 
 the Court, was not parallel with the Western Houndary of the 
 Township of Kingston, and that when so drawn, it would he shift- 
 ed Westerly, ahout half way from the first renio\ al. Was em- 
 ployed in 1837 hy Mr. Murney, to mak(^ a Surve\ of Lot No. 25. 
 Deponent applieij to Captain (irass, and from his information, 
 planted a Stone on the present puhlic Koad, in IVotit, between 
 liOts Nos. 24, 25, as for the oriuinal corner of Lot No. 24, and 
 in producin<r the Line on the Eastern side <'\actly strai^lit thrtrngh- 
 out, it did not coincide with tlie llenr of the Park Lot No. I, 
 having reference to the Stone Po.st at the South-west corner as 
 planted hy him, from the testimony hy Mr. Ferguson, and^ from 
 which the Post as then jdanted, is about two feet too lar Wester- 
 ly. DeixMient was frequently called upon hy the Claimant to run 
 the Eastern Line of Lot No. 24; but (>onceiving that he was re- 
 strained hy the Act of 181 S, he could not cross over any known 
 or original Boundary. In measuring the width of the front of 
 Lot No. 24 in 1838, Deponent found it 20 chains 58 links, and 
 in the Rear line from the late determined Post— as between 23, 
 24, to a point in front of the known South-easterly Angle of Lot 
 No. 24, 2d Concession, 9 chains 40 links, and to give lo Lot No. 
 
■) ) 
 
 Mh:N ruKl ANA. 
 
 [Pail 2(1. 
 
 24, Ui (;oiut'>sii)ii, its lull bitiultli in Ktar, a parallel Line will 
 extend II ihains 18 links Easterly, making a content of about 
 42\ Acres, and taking out wliat lie had a right to, as lying be- 
 tween Collins and \ aliy's Linos, will leave about 39 Acres. In 
 the Survey of 1833, made for the Claimant, West Street was in- 
 cluded with the Lots in No. 24, with the intention of obtaining a 
 ri«>-ht to it from the Court, in lieu of a like allowance, left for the 
 u.se of the Public, more West. The Law authorizing the trans- 
 fer or Sale of Government allowances being repealed in 1824, 
 prevented its being done. Deponent considers that the com- 
 mencement of Tulfy's Line, was tlu; North-west corner of Park 
 Lot No. 1, as at present known. Mr. Grass spoke to Deponent 
 respecting the place of a particular Stone from which he could 
 designate^ the Line run by Tulfy, and when Mr. Grass went with 
 Deponent to the Ground, he recognized the Stone, and pointed 
 out the Line where a iencn has been placed, which agrees 
 with the Rear as pointed out by Ferguson. 
 
 Sworn in Open Board, March 18th, 1840. 
 (Signed) 
 
 William H. Kilborn. 
 
 Peter Grass, of Kingston, Yeoman, being Sworn, Deposeth 
 and Saith — That he was "at the first Su.vey made by John Col- 
 lins, Surveyor General, in 1783. The front of the 1st Conces- 
 sion was made before Deponent returned to Sorel. His father 
 was allowed to take Lot No. 25, 1st Concession, and Mr. Stuart 
 the Minister was allowed No. 24. The vest of the Township 
 was drawn for. Deponent is now Seventy years of age. His 
 father always supposed his Lot at first to be 200 acres, and got 
 Kotte, a Deputy Surveyor to examine the course of the Eastern 
 Boundary Line of No. 25, as then laid down by Collins, and 
 found it to be 22 deg. West of North. 
 
 There was a difficulty about the course of the Line, and Tuffy, 
 a Deputy Survevor under Collins, was employed to run it out 
 anew. He, TulVv, commenced about the middle of the Concession, 
 and the Line run bv him was East of Collins's Line, which was 
 the Eastern Boundary of the 200 acres. Lot No. 25. Collins' 
 Line was run in 1783, and TulTy's Line about 1785. Deponent 
 went with Kilborn a short time since to examine the Ground, 
 and found a large Stone \\hich he recognized. The Line as now 
 
 \ 
 
 \ 
 
PaK 2il.] 
 
 mi<:n fori an a 
 
 23 
 
 known for (he Euhl Side Lino of Lot Xo. 25, coitu kIos uiili Col- 
 lins' Line. His I'athor su|)poso(l lie luul njjwnrds of 100 acres 
 after he had received a remuneration of Land in Pittshuri;h for the 
 deficiency of 100 acres. Deponent says that Mr. Collins slated 
 that the persons who were deficient in their quantity, should 
 receive an equivalent ; that his lather considered Collins' Line 
 as the Line of his Land to where Tully commenced, and from 
 thence TulFy's Lino was taken to he his E^astern Boundary. His 
 father made his fences hy Collins' Lino. 
 
 BEING CROSS-QUESTIONED. 
 
 That he understood his father's Lot to go to the front of 2iui 
 Concession ; hut what was the hreadth there, Deponent cannot 
 say. By Collins' Line, the Land did not reach the 2nd Conces- 
 sion. When he sold the Land to the late Henry Murney, his 
 father supposed that he was selling at least 100 acres, and Depo- 
 nent himself supposed so. Collins' Line was run out heyond 
 the Rear of the 1st Concession, but Deponent docs not know how- 
 far it was carried. 
 
 Sworn in Open Board, March 18ih, 1840. 
 
 (Signed) 
 
 Peter Grass, 
 
 21st April, 1840. 
 
 \ 
 
 Gilbert Or?er, of the Township of Halloji'ell, formerly of 
 Kingston, Yeoman, being Sworn, Saith — That he. Deponent, came 
 to Kingston in September 1783, with John Collins, Est]., Deputy 
 Surveyor General, and Captain Michael Grass from Sorel, at- 
 tached to the Surveying Party. They proceedec to lay out the 
 Township of Kingston, and commenced at the little Cataraqui, and 
 run out West to Lot No, 1, and then Northerly to Collins' Bay, 
 does not recollect crossing the Bay, but was told that the Survey- 
 ing Party did go to the North six miles; Deponent says how- 
 ever that the Party, and he with them, returned from No. 1, and 
 laid out the Lots, 200 acres each, to the Eastern side of Lot No. 
 25, where a Monument was placed ; they then run out North, six 
 miles; he was with tiie Party, and made a Line of blazed Trees 
 ilu-oughout, but Iherr vveie no! ;it thai lime any of the Conces- 
 sions run out, h\ which Survey it was intended to give Lot No. 
 
 1 
 

 ! t 
 
 M 
 
 MKNTOUIAN A 
 
 [Pmt 2il. 
 
 2,") 200 a« ifs; lliai ilir Kaslciii Line o\' Lot No. 2b wns run oiK 
 ill llic fall of 1783 when (.'nj»Uiiii (_irtiss and liis S )ii had rodirued 
 to Sou'l. Dcpont'iii says that ihf Townsliip Lands were laid oni 
 hi'l'oiT the Town, savs that ho has not attempted to find the Line 
 so run out hv Mr. Collins on the (Iround; does not think that he 
 rouhl now lind it, I'roin the ahered ajjpe'aranee of the i)laee. 
 
 Sworn hetore the Board, April 21st, 1840. 
 
 (Signed) 
 
 (iILBKRT OrSEO, 
 
 William II. Kilbown, Deputy Surveyor, heino Sworn, Dc- 
 poseth and Saith— That in 1821 or 1822, he the Deponent was 
 in the employ of Keuhen Slierwood, when the Rear Angle ot 
 Fiinn Lot A was pointed out hy the late .John Ferguson, Esq., 
 (whose Wife was the owner of Lot A,) where a Stone Monu- 
 ment was (ound at the \ortii-west eorner, and a Post at the 
 South-west eorner, th<M-e was a loose Stone Wall between Lot A 
 and Lot \o. 1. The Monum<Mits could not readily he found in 
 1823, hut Deponent utter eiKpiiring of Ferguson, Hud others, again 
 found the plaec of the South-west eorner, and ascertained the 
 place of the other hy the intersection of the Line drawn from the 
 first Monument to a point sixty-six feet Fast from the Southerly 
 Angle of Lot No. 21, 2nd Concession of Kingston, the places «»f 
 which are now known, hy Stones planted there, th-iit he has 
 traced th(> Line Norlherlv u[)on an old Line marked and blazed 
 to the Rear of the Township. 
 
 Sworn before the Hoard, April 2lNt, 1810. 
 
 (Signed) 
 
 William H. Kilborn. 
 
 Samuel S. Wilmot, of Clarke, Esq., being Sworn, Deposeth 
 and Saith— That he was employed by the Surveyor General to 
 make a Survey of the extension of the Town of Kingston in 1817 
 and 1818. In the prosecution of the work, he was guided by 
 the Rear .>f ih< Bbx ks, Park L<Ms \os. 1 and 2 ; in producinu: 
 this LiH", he l)ep'>iieiit foinul ;i Line ol' Stumps p"iiil< d out I" 
 him as the Line ol explain Uy^'ss Land IS o. 25 Hr Inid nut 
 
Van 2d.] 
 
 MENTORIANA. 
 
 25 
 
 De- 
 was 
 
 a Road of 40 i'eet between the Rear of Park Lots Nos. 1 and 2, 
 and Farm Lot No. 25, thus making the Western limit of the 
 Town on a Line from the water's edge to the intersection of the 
 North Western Angle of the Glebe or Clergy Block C. He 
 considered that the Town of Kingston was part of the Township 
 of Kingston, and as within the limits of the Township. The line 
 of Stumps spoken of, was considered as the Eastern Line of Cap- 
 lain Grass's Land, and he the Deponent was governed by it. 
 
 Sworn before the Board, August 20th, 1840. 
 
 (Signed) 
 
 Samuel S. Wilmot. 
 
 The Members of the Board went out and took a view of the 
 wliidc Line in dispute along with Mr. Wilmot, but from the great 
 alteration of the Ground since he made the Survey, he could not 
 very clearly point out tlie course of the Line in some places as 
 run by him in the Survey of the Town in 1818. 
 
 August 27th, 1840. 
 
 The Board having heard a variety of testimony relating to the 
 subject, examined the several Surveys made, and Plans exhibited, 
 and having viewed the Ground in question, and duly considered 
 the premises, tlie undersigned do hereby make, publish and de- 
 ( hire our decision in the matter, as follows : We do award, order 
 and decree (hat (he Eastern Side Line of the said Lot No. 24, 
 l.'^t Concessii.il of (lie Township of Kingston, shall be a Line 
 chawn : conuncncing a( a Stone Monument marked 24, 25, stand" 
 ing on or near (he Bank ol Lake Ontario, at (he limit between 
 (h»> Venerable George Okill Stuart's Lot No. 24, and Lot No. 
 25, beloni;ing to (he estate of (lie la(e Il(>nry Murney, Esq., in 
 (he 1st Conct'ssion of the Township of Kingston; and at a Point 
 Soiiih l(h'g. 3 Hiin. 10 sec. lOast, asddnojnicallv, of another stone 
 Moiiunu'iK niaiked N<>. 24, 2b, !», .md 1st ('niicessicn, placed in 
 
 D 
 
MENTORIANA. 
 
 [I'iiit 2i\ 
 
 a liolo drilled in the Rock on wliicli it stands, lillcd up willi lead, 
 and the lead crossed, and also a cross on the top of tlie Monument, 
 exactly at the place of the original Post at tlie front Angle be- 
 tween Lots 24 and 25,— then North 4 deg. 3 min. 10 sec. West 
 astronomically parallel with the Boundary Line of No. 1 in said 
 Concession, along the present Side Line hetween said LotsNos. 24 
 and 25, to its intersection with the original Eastern Boundary 
 Line of said 1st Concession, as run by the late John Collins, Escj. 
 Deputy Surveyor General, in 1783, at which intersection there is 
 a Stone Monument, marked Nos. 24, 25, placed with glass ov 
 earthen beneath it, and also marked with a cross on the top, ex- 
 actly at said intersection, then along said original Eastern Boun- 
 dary of said First Concession, North twenty-seven degrees six 
 minutes West astronomically until the same shall intersect the 
 North Easterly Limit of Store Street produced; then South-east- 
 erly along said Limit of Store Street to its intersection West of 
 Wilmot's Western Limit of the Town of Kingston, run in 1818, 
 and at his Western Limit of West Street ; then North-westerly 
 along said Western Limit of said Town, as run by Wilmot as 
 aforesaid, to a Stone Monument to be planted at a point Forty 
 Feet Westerly from the South-westerly angle of the Lot granted 
 to the late Mrs. Magdalen Ferguson, and in a line with the South- 
 erly Limit of the said Lot; and from thence Northerly in a direct 
 line to a point where a Stone Monument is to be placed for the 
 North-easterly angle of tlie said Lot No. 24, which point is forty 
 feet Southerly of the Stone Monument planted by P. V. Elmore, 
 Deputy Surveyor, in 1831, under and in accordance with the 
 Statute of 1797, at the original South-easterly angle of Lot No. 
 24, in the 2d Concession of the Township of Kingston. 
 
 That durable Stone Monuments be placed at the points desig- 
 nated, where none are already done ; tliat tiie expenses incurred 
 in this matter shall be paid by the Claimaiit, when the amount 
 thereof shall be ascertained. 
 
 i 
 
MENTORIANA. 
 
 27 
 
 1 
 I 
 
 Part 2.1] 
 
 In Witness Whereof, wo, the undersigneil Boundary Line 
 (Commissioners, liave hereunto set our hands this twenty-seventli 
 day i>f August, 1840. 
 
 (Signed) 
 
 Isaac Frazer, 
 Orton Hancox, 
 James Nickalls. 
 
 From the foregoing Award, Judgment and Decree of the 
 Boundary Commissioners, an Appeal was made by the Venera- 
 ble George Okill Stuart, as not in accordance with the provisions 
 of the Statute Law of the Land, to the Court of Lav;, of Toronto, 
 who set aside the Award, Judgment, and Decree of the Boundary 
 Commissioners, and established and confirmed the parallel Line of 
 Survey as the Eastern Boundary and Side Line of Lot No. 24, in 
 tlie 1st Concession of the Township of Kingston. (See Document 
 A, in the Appendix, and Diagram in front of title page.) 
 
28 
 
 MKNTOHIANyV. 
 
 |Pai1 3.1. 
 
 'J IIK THIRD PART. 
 
 COmmiJ IV I€ ATION s 
 
 On the Iriic Lines of Survey and Boundaries of Seignory No. 1, 
 and Common Cataracjui, afterwards, inidor different limits, tlie 
 Township and Town of Kingston, in eontradislinetion to the 
 defective Lines of Survey and erroneous Boundaries, publisli- 
 ed in the "Kingston Herald" between the years 1839 and 
 1844. 
 
 Mr. Editor, — 
 
 In your Paper of tlie 27th of April, 1841, two Questions are 
 proposed to he solved for the information of the Publie, fmd the 
 gratification of "A Subscriber," expressed in these words: — 
 "What is the cause of the difiercnce between the Eastern Boun- 
 dary Line of Seignory No. 1, and the Common Cataraqui, af(er- 
 wards, under dillerent limits, the Township and Town of Kings- 
 ton, on the Government Map, and the same Boundary Line on 
 the Map of Publius V. Elmore, printed and published .it Hallow- 
 ell, U. C. in 183C, — and which one of the two is the true Boun- 
 dary?" 
 
 The writer signed " Mentor" undertakes to solve these Ques- 
 tions, in the decision of which the rights and interests of the in- 
 habitants ol the Tow^nsliip of Kingston are involved to a great 
 extent and value ; and for the settlement of the Boundaries agree- 
 ably to the original Lines of Survey, Commissioners have been 
 appointed, to whom a|)[>lifation must be made for the establish- 
 ment of the Eastern Boundary Line of the Township and Town 
 of Kingston, upon a Inie and j)ern)anent footing, and from whom 
 an Appeal lies (o ihe Court <»f (Queen's Bench in Toronto. 
 
 if 
 
|»;irl 3.1.] 
 
 MEMOUl AN A 
 
 29 
 
 III bringing these (^iiostions brlWrc tlio INiMic, "Mentor" is 
 fiuouragcd to hopo tliat if his statomcMit shonhl not provo satisfac- 
 tory and concliisivo, some aid may bo expected and derived 
 from Government Survey )rs and first settlers in the Townsliip, 
 who are enabled, from krowledgo in tlieir profession, and from 
 experience, to contribute to the removal of litigati<m and suppres- 
 sion of contention. 
 
 In the year 1783, Seignory N<). 1, or the Township of Kings- 
 ton, was laid out and Surveyed by Deputy Surveyor General 
 Collins, under the authority of the Executive Government of the 
 Province of Quebec, and it constituted a square, six miles in ex- 
 tent, having Monuments or Boundaries fixed and planted at its 
 four corners. In the First Concession the respective Lots or 
 Farms from No. 1 to No. 25, inclusive, had their limits assigned, 
 and Monuments were planted. A Map of the Township, accord- 
 ing to the Survey in 1783, was deposited in the Survey.)r Gener- 
 al"s Office, in Quebec, accompanied by a specific Report from 
 Deputy Surveyor General Collins, to Major Holland, the Sur- 
 veyor General of the Province of Quebec. 
 
 In this Map are delineated the Boundaries of Lot No. 25, hav- 
 incr its Eastern Side Lino paralhd with the Western Side of No. 
 Tthe Western Boundary Line of Seignory No. 1, afterwards, 
 under different limits, the T.)wnship of Kingston, and this Line 
 constituted the Eastern Boundary Line of Seignory No. 1 an. 
 (he Comm.m Cataraqui from the year 1783 to 1785 ..r 1787, an.l 
 afterwards, under diflercnt limits, the Township and T.>wn of 
 
 Kingston. 
 
 In the year 1785 or 1787, in consequence of a Contract be- 
 tween the Government and Captain Grass, a Loyalist, for the 
 relinquishment of the Eastern half of Lot No. 25, a Line of Sur- 
 vey was run, with an intention to divide the Lot diagonally int.> 
 two c.pial parts. This Line .)f Survey was run by Mr. Tuffy, 
 a Deputy Survey.>r under Deputy Surveyor General Collins, in 
 
 If 
 
30 
 
 MILVTOPvIAN'A. 
 
 [Part ;J.I. 
 
 1785 or 1787, and is oiionoous and dt'lfdivc, di\idin<>; (lie Lot 
 into two »ni0(|ual parts, and at variance with the Patent "granted 
 by tlie Government to Ca[)tain Grass in the year 1798. No Map 
 of the Survey of Tally was deposited in the Surveyor GencraPs 
 Oltice, in Quebec, and ei>nse(|uently no scientitic Retiort is to be 
 found tliere. 
 
 In the period of time between the years 1794 and 1797, De- 
 puty Surveyor Aitken, resident at Kingston, or Cataraqui, was 
 authorized and commissioned by Governor Simcoe to re-survey 
 the Townsliip of Kingston, confining and regulating his Lines of 
 Survey by the Monuments fixed and planted by Surveyor Gener- 
 al Collins, in 1783, and making them the governing points of the 
 re-survey. By reference to the Government Map, under the Ex" 
 ccutive Government of Upper Canada, the diagonal Line of Sur- 
 vey, dividing Lot No. 25 into two equal parts, and extending to 
 the rear of the First Concession, constituting the Eastern Boun- 
 dary of Lot No. 25, and also the Eastern Boundary of Seignory 
 No. 1 and the Common Cataraqui, and afterwards under different 
 limits, the Township and Town of Kingston, was run in accord- 
 ance with the contract between the Government and Captain 
 (irass, the possessor of entire Lot No. 25, in the Survey of 1783, 
 and in agreement with the course and distance expressed in the 
 Patent of 1793, granted to Captain Grass by the Government. 
 
 Having, in the foregoing statement of facts, given a history of 
 the Lines of Survey, and the authority for the same, "Mentor" 
 is enabled to solve the Questions which are the subject of enquiry : 
 *' What is the cause of the diirerence between the Eastern Boun- 
 tlary Line of Seignory No. 1 and Common Cataraqui, afterwards, 
 under different limits, the Townsliip and Town of Kingston on 
 the Government Map, and the same Boundary Line on the Map 
 of Publius V. Elmore printed and published at Hallowell, U. C. 
 in 1836, and which one of (ho two is the true Boundary ? 
 
 The answer is ol)\ ions : The Line of Survev delineated on 
 
De- 
 
 was 
 
 IWl3.l.| 
 
 ISIKNTOIUANA 
 
 31 
 
 (lie Mii[) (•( PiiMiiis V. EliiKUC is ciioneous iiiid (IflrcliN c, lic- 
 causc the Line was run hy llie Ali>i:;iielic Needle, wlio>e VMialion 
 and allraction weie not corrected by Mr. TulVy, InU followitij; tlic 
 al)errali<»n tliereuf, Lot No. 25 was divided into two unequal i-arts; 
 and instead of extending the Line to the rear of tlic First Conces- 
 sion, it terminated about the middle of Lot No. 24 on Tully's 
 coiMse. In the re-survey of the Township by Deputy SurN eyor 
 Ailkeii, under the authority of the Executive of Upper Canada, 
 the l^ine of Survey delineated on the Government Maj) was run 
 correctly, dividing the Lot No. 25 into two equal parts, extend- 
 in<»- to the Rear o( the First Concession, and in accordance with 
 the contract between Captain Grass and the Government. 
 
 The answer to the Second Question, "Which one of the two 
 is the true l^oundary," is of easy solution. There is no authority 
 to support Tully's Line of Survey, arising from the want of a Map 
 of Survey and Rc[)ort thereon, as they are not to be found in the 
 SurA'eyor General's OfTice, in Quebec ; and this is also confirmed 
 bv its incorrectness in not agreeing with the contract between the 
 Government and C.iptain Gr.iss. 
 
 There is an authority to support the Line ofSm-vey on the Go- 
 vernment Mai), founded on the Report of Deputy Surveyor 
 General Collins, in 1783, and on the re-survey by Deputy Sur- 
 veyor Aitken, under the autliority of the Executive Go\ eminent 
 of Upper Canada, between the years 1794 and 1797. 
 
 The Boundary Line of Seignory No. 1 and Conmion Cataraqui, 
 afterwards, under dill'erent limits, the Tt>wnship and Town of 
 Kingston, on the (lovernmenl INIap, is the true Boundary. 
 
 MENTOR. 
 
:U MKNIOUIANA. [Pari .'J.l. 
 
 Mr. Kditoh, 
 
 Hiivirii,^ ohsoived in your \n\\)vr of (he 27lli ultimo, a Coiii- 
 iminicat ion from "A Siihscribor," containing two Questions re- 
 hifing to liiat part of the Eastern Boundary Line of Seignory No. 
 1 and Common Cataraqui, and which now, under ditfercnt limits, 
 forms the Western Bounthiry Line of the Town of Kingston, and 
 hflieving that tlie instituting of Queries for public inspection and 
 discussion, is always a legitimate, and not unfrequcntly an efli'ct- 
 tual mode of eliciting truth, and as your correspondent "Mentor'' 
 has favoured the i.uhlic with an Answer to these Questions, I 
 hug permission, through the medium of your columns, to ask him 
 to indulge the public with a solution of the Questions which I 
 herein take the liberty to propound for his consideration. And 
 as he condemns Mr. Elmore's Map, published in 1836, because 
 the Eastern Boundary of Lot No. 25 in the First Concession of 
 Seignory No. 1, afterwards the Township of Kingston, does not 
 correspond with the Government Map of the same Line, I beg, in 
 the first place, to direct his attention to a few more discrepancies 
 of the same character. 
 
 And First, if he will examine Mr. Elmore's Map, he will find 
 that the Western Boundary Line of what was originally the 
 Township of Kingston, ivom the front of the 1st to the rear of the 
 Seventh Concession, is one continued straight Line ; while on th(( 
 Government Map by Mr. Aitken, dated March 5t]i, 1795, <her(^ 
 is an otlset in tliat Line at the Rear of the First Concession of 
 about three hundred acres. What, I ask, causes this dilTercnce, 
 and which of the Maps in question corresponds the nearest with 
 the original Survey on the ground? Will "Mentor" answer 
 tliis ? 
 
 Secondly, if he will examine Mr. Elmore's Map, he will find 
 that No. 19 in the Fourth, Fifth, and Sixth Concessions of the 
 Township of Kingston, lies almost directly in Kear of Lot No. 17 
 ill the Second and Third Concessions of the same Township, 
 
.}.l. 
 
 Pilrf 3(1.] 
 
 >ri:\T()MiA\A 
 
 dJ 
 
 wl.ilcMlM. (iov(>niinoi.t Map iM-.uiiio tl.c daUi iiieiilioiu.d ahovc, 
 l^«»« N... If) in (1,0 Fourth, Fild,, and Sixd. C'oncossions lies di' 
 roclly in Roar of Lot No. 19 in (1,0 Second, ai.d Third Concos- 
 sions, and so on, thi"«)u<rh all (ho Conoossions in tho Township. 
 What, may I ask, causes this diiroronco, and which of the two 
 Maps in (pjostion is (ho more correct accordiii<r (o (he Survey? 
 Will "M(>n(or" answer this also? 
 
 Thiidly, H ho will examine Mr. Elmore's Map, j,c will find 
 that Lot No. 12 in the Concession on the West side of the ^rreat 
 liiver Cataracpii is delineated in the form of a triangle, while on the 
 Covernmcnt Map of the date referred to, he will lind it represent- 
 ed as a Trapezoid fronting „n the River. What, may I ask again 
 causes this ditroi-once, and which of the two Maps is the more 
 correct ? Will " Mentor" answer this also ? 
 
 Having, in tlic foregoing Queries, drawn the attention of your 
 (•orrespondent to some of the dJlforenccs existii,g between an ofli- 
 cial copy of the late Alexander Aitken's map of the Township of 
 K.ngstcm and Mr. Elmore's published map of the same Township, 
 I beg now to call his attention to tl,e agreement, or rather disa- 
 greemcnt, of the Government maps themselves. 
 
 And first, if h(! will examine a map obtained bv the Venerable 
 Archdeacon of (his Town from the Surveyor General's Office, at 
 Quebec, ho will find that the Township of Kingston was originally 
 mtondod to b(> six miles square; that the Lots in each Concession 
 are ro,)rosenle(l („ ho about C4 chains long, and that there is an 
 allowance lor Road hotweoii every nine lots; while on (he Go- 
 ve,-nment map oblaiuod at To,-on(o, bearing ncarlv the same date, 
 ho will find that tho Township, instead of boing Jix miles .square' 
 is six miles by ton ; that between the lots (hero is no allowan'-e 
 lor Roads laid oul, and (hat (Ik h.ts by the latter map, instead of 
 being only Gl chains long, aio 105 chains, 27 links. >Vill ^'Men- 
 tor" aroouiK i;»r this, and show us whirl, is ooin-ct ? 
 
 Lastiv, if ho will .•oinimir Mr. Coiriiis' map ..f 1783 with Mr. 
 
M MKNIOIUANA. [l»s.iiJ(l. 
 
 Ai(k«!ii'.s ii.a;i of I )!).■> or 171)7, lie will liinl <'ii l!i(« foiiiifr, lliat 
 liOt No. lb ill ilic i'"n>i ('(Mwisslon is only 19 tliiiins wid*', that 
 ♦ lu'H! aiv DO alloNvanrrs l\n' Roads, eillior iH'lwi'fii llic Ct)iu'us- 
 sioiis or J^ots, ami that Lot Xo. 25 is a lull lot ; wliilo on liie lat- 
 t(M' Lot No, 2') is rcpresoulcd as being 28 cliaiiis wide, and al- 
 lowanci! lor Kt»ad lu'twcon t-acli ol" (lie Concessions, and l^oi No. 
 25 a tiianulc, (•(Hitaininu; only lOU acics. Why lliis dilU'irntM! 
 hctwot'n the (lovcnuiicnt maps iht'insclvi'S, and wliy may not one 
 lit> taken to be correet as well as aiiollier? 
 
 I am vonis hui> , 
 
 IMIILO, 
 
 Kinoslon, May 22d, IHII, 
 
 Mr. Editor,— 
 
 In perusing your paper ol the 25tli ultimo, " Mentor" bad 
 the satisfaction to notice a communication under the signature til 
 "Pliilo," on the Eastern IJoundary Line ol' Seignory No. I, af- 
 terwards, under dillerent limits, the Township ol" Kingston ; but 
 was much disappointed in discovering that it contained nothing 
 in point of fact, date, and report ol Survey in support of the o^jin- 
 ion that tlie Boundary Line; delineated on the maj) of Publius V. 
 Elmore was the true limit or Eastern Boundary of Seignory No. 
 1 and Connrtoii Catiua(pii, afterwards the Township and Town of 
 Kins^stoiL, in contradistinction to tlM> Line of Survey "Mentor" 
 had stated to be the (rue one, and Iiad established it by facts, dates, 
 and likewise by documents trom the Ollice of the Surveyor Gene- 
 ral of Quebec. 
 
 The principles and motives upon which "Philo" professes to 
 act, in giving bis communication to the public, were disregarded 
 by him, and he did not elicit truth ; b(>cause he diil not inspect 
 and discuss the two(|uestions pn^poscd by "A Subscriber" for the 
 biibrmation of iIk? pnbli( , and the giatificaiion oi' the iiujuirer. 
 
 P 
 
I'arl 3.1. 
 
 MKNI'uin AN A. 
 
 .'J5 
 
 And it is iiui iiiifiiir, ..r imjiisi, on ilu jnui i,\'' Mciitni" in n'ntari<, 
 ihiit "I'liilo'' liiis dot pfoNcd to ilic |iiil»lic, jind rsliililislK.'d llic 
 Line assiiiricd oil llic niiip oi" Piililiiis V. Elmore to Itc the triio 
 Eastern IJoiiiid.iry Line of Seignorv No. 1 and Coiniiioii Catara- 
 <|iii, afterwards, under dillerent iiniits, the To\vn.slN[) and Town 
 of Kini:;slon ; l)ut, by his aberration from tlie siihject under discus- 
 sion, has indirectly and l)y implieation conceded to " Mentor" that 
 the Houndary Line on the Governnient niaj) is the true one, and 
 that tJie inferences from facts, dates, and ilocuments, are satisfac. 
 tory and concdusive to its cstahlishment. 
 
 "Mentor" has much satisfaction in assurinii; llie puldic, that the 
 IJoundary Lino Commissioners have estahlished tin- Western 
 Boundary Line of Seigiiory No. 1, afterwards named the Town- 
 ship of Kingston, in tiie First Concession, on a perinan(>nt footinu', 
 and in accordance willi tiie Line of Surv(>y performed hy Deputy 
 Surveyor General C(dlins in tlio year 1783, under the authority 
 of the Executive Government of Quebec. Tiie puldic have rea- 
 son, tliercfore, to infer, tliat the Eastern Line of Survey, beinsr 
 the Boundary between the Township and Town of Kingston, will 
 also be cslablislied l)y the Commissioners on a true and permanent 
 fi)i)ting, and in accordance with the orioiual Line of Survcv, in 
 1783, by J)eputy Surveyor General Collins. And thus the East- 
 ern Boundary Line of the Township of Kingston on the Govern- 
 ment map will be confirmed and permanently established, to the 
 exclusion of the Line of Survey delineated on the map of Publius 
 V. Elmore, which is erroneous and defective. 
 
 In bringing this communication to an end, " Mentor" is much 
 gralifKHl in the opportunity it presents of remindino- the public of 
 the debt of gratitude and acknowledgment due to the Legislators 
 of the House of Assembly who originated, and succeeded in hav- 
 ing the Provincial Statutes of 1798 and 1818 enacted. By the 
 provisions of these laws the Boundary Line Commissioners are 
 enabled and empowered todiscbargp i\w important Trust commit^ 
 
:i() 
 
 MEN'TOIUANA. 
 
 [Part 3(1 
 
 ted to flieni in correctini)- errors and (leltMls in Surveys lierctofort* 
 made in tliis Province, and in placing Btnindary Lines upon u 
 true and permanent footing, and by tlieir de(^isions and judgments^ 
 in accordance witli the Law of the Lnnd, relieving the inhabitants 
 of the Province from being involved in expensive litigatioji, and 
 in endless nncertainty and contention. The Commissioners of 
 the Midlfind District have, in a recent application bcf()re theiri, in 
 the First Concession of the Township of Kingston, ftdlilled their 
 official duty ; and have decided a claim founded on the Rights in 
 the Patent, and on Law and Ecjuity, in a dispute between the 
 Venerable George Okill Stuart, Claimant, and the Reverend Wil- 
 liam M. Herchmer, Respondent, Patentees, or Heirs of the Crown. 
 In that Judgment (he Commissioners have given an evidence of 
 their integrity and impartiality ; and it is to be hoped that, in all 
 future cases and applications for relief brought before them, they 
 will continue to protect the rights of the Claimant against pre 
 possession, injustice, and oppression ; and that Appeals from tiieir 
 decisions to the Court of Queen's Bench will be few, and con- 
 fined only to special cases of difficulty and intricacv. 
 
 The Questions proposed by " Philo" in his communication on 
 erroneous and defective Lines of Survey, to be solved by " Men- 
 tor," is a proper subject to be referred for solution to the officers 
 of the Surveyor General's Department for Canada, formerly Up- 
 per Canada, and from whom the re(juired information may be ob- 
 tained ; as '' Philo" represents them to be erroneous and defec- 
 tive, and not in accordance with the Government Map and original 
 Survey in 1783, by application to the Boundary Line Commis- 
 sioners, they will be corrected and placed on a true and perma- 
 nent basis. 
 
 MENTOR. 
 
Fart3.l.] 
 
 MKXTOIUANA. 
 
 ;J7 
 
 H 
 
 Mr. Editor, — 
 
 Fii your |);i|)('r (if April illli, 1Sll,t\v<) Questions nn> \)vor 
 \n)Si){\ lobe si>l\««(l lor (lie <!;rin!lic,:lioii <»r" A Subscriljcr," unci for 
 the iiilormatiou ol'dM' piihlic. A (liird is now proposed in llieso 
 words : " VVIiiit is the (rue Line ol' Survey, or liouudary, of (ho 
 Townslii[) of KiiigsloM, limit iriu; (lie Town of Kingston, and con- 
 stituting tlio true, unalterable, and permanent Boundary thereof, 
 established by Patents and the Statute Law of the Land ?" 
 
 The writer under the signatin-(> of "Mentor," having, on a 
 late occasion, and in a communication through the medium ol 
 your paper, and at the ro.-piest of " A Subscriber," solved two 
 (Questions, now replies t(> a third, with a r(>adiness and satisfac- 
 ti(m equal to the importan<-e of the iiupiiry, and the valuable in- 
 terest it invtdves, and piosecutes the History of Surveying, by a 
 statement of facts from the year 1783 to 1801, and from 1801 to 
 1804, and from 1804 to 1343, the present year, in order to arrive 
 at the true Eastern Boundary Line of the Townshi[) of Kingston, 
 limitin*"" th<^ Town of Kiuiiston, and constituting the true, unalter- 
 able, and j)ermanent Boundary tliereof, esiablished upon the per- 
 manent basis of Patents and t!ie Statute Law of the Land. 
 
 From the year 1783 to 1785 or 1787, the Eastern Side Line of 
 entire Lot No. 25 was the Eastern Boundary of Seignory No. 1 
 and Common Cataraqui, afterwards, under diilcrcnt limits, the 
 Township and Town of Kingston. From the year 1787 to the year 
 1801 thi3 diagonal line delineated on the Government Map, em- 
 anating from the Sur^'ey and Rejwrt of Deputy Surveyor General 
 Collins, and the re-survey and Rejiort of Deputy Surveyor Ait- 
 ken, as being (he Eastern Boundary Line of Lot No. 25, in the 
 First Concession of Seignory No. 1, constituted also the East- 
 ern Boundary of Seignory No. 1, afterwards, under ditlerent lim- 
 its, known as (he Township of Kingston, having the Common 
 Catnraiui, or Reserve, Iving between it and Fort Fronteiiar ; and 
 
38 
 
 MtlNl'o:?! \X \. 
 
 [Part 3(1. 
 
 wliicli lr;ir| ol" hiiiil imdor (liV-.-i'iif liiii't-., aii'l ii( a siibstMjUcnt 
 period or daU^, formod or conslitnlcd the Town of Kiiii;;^l(m. This 
 Boundary Line commenced at a Posl or stone Monument placed 
 at the South-east corner of Lot No. 25, in the First C;)ncessionj 
 or front orSoiL;-n,)ry No. 1, allerAMrds, under dinbrent limits, 
 named the Townsliip of Kingston, and it e\ten(h>d to tJic rear of 
 the First Concession. 
 
 ]n tlio year IS;)!, a porti;)n or tra^'t of Land was taken from 
 tlic Common, or Reserve Catara(pii, lying between tlie Eastern 
 B mndary Lina of vSeignory N). 1, afterwards, under dilferent 
 limits, the Township of KingMon, and Fort Frontcnac, and the 
 said tract of Land was conveyed and granted in a Deed or Pfitcnt 
 from Lieutenant Governor lliniler, issu<'(l to Sir Jolni .Johnson, 
 and is known under the I'lilowinii; description: "Being Park 
 fiOt No. 1, adjoining the Town of Kingston, in the Township 
 of Kingston, containing Eighteen Aim'cs of Land, and bounocd in 
 the Rear by the Eastern Boundary Lino of Captain Michael 
 Grass's Land, or Eastern liiTiit and Boundary of Lot No. 25." 
 
 In the year 1S04, a portion or tract of land was again taken 
 from the Comm »n, or Heserve Cataraqui, lying between the 
 Fastern Boundary ]^ine (*f Se^unory No. 1, afterwards, under 
 dilferent limits, the Town-hip of Kingston, and Fort Frontenac, 
 and the said tract of land was conveyed and granted in a T3eed or 
 Patent from Lieutenant Governor Hunter, issued to Ann Earl, 
 and is known under the following description: " Being Pcirk 
 Lot No. 2, in the Rear of the Town of Kingston, containing 
 Ten Acres of Land, and situate in the Township of Kingston, and 
 bounded in the rear by th;' Eastern Boundary Lino of Captain 
 Michael Grass's Land, or Lot No. 25." 
 
 The obvious conclusion whicli " Mentor" has it is bis power 
 to infer from the foregoing statement of facts, embraced in the 
 History of Surveying, is, thai thi true and unalterable Boundary 
 o|'S(>ijinor\ No. I, aftcrwaids, uiidor dillerenl limits, known us 
 
 \ 
 
1 
 
 MENT );U\NA. 
 
 30 
 
 l\iit Jd.J 
 
 tlu; T<)Wiislii|) ol' Kill ;sl<)ii, is lliat wliicli is (loliiicaicd on llic Co- 
 vernniL'Ut Maj), and is known by llic Diai;onal Line lh;il limits 
 the Eastern Boundary Lino oi' Lot No. 25, in the First Conces- 
 sion of Soi^nory No. 1, afterwards, under dilferenl limits, tlio 
 Township of Kingston, from the year 1785, or 1787, to the years 
 1801 and 180i. 
 
 And the ne\t eh-ar and [)hrn, or ohvious inference from the 
 foregoing statement of facts is, that from and after llie years 1801 
 and 1804, feeignory No. 1, eml)raclng the additional tracts of 
 Kind witli their anguhir extensi>)n to the eastward, hy Patents 
 from Lieutenant Governor Ifunter, constituted tlie Eastern limit, 
 or Bounchu'} Line of the Townsliip of Kingston, limiting the 
 Town of Kingston from the j)eriod or years 1801 and 1801 to the 
 year 1843, the present Time. 
 
 The commencement and termination of the Boundary Line or 
 Eastern limit of the Township of Kingston, limiting the Tow^n of 
 Kingston, from the years 1801 and 1804 to the [)resent year 1843, 
 constituting the true, unalterable boundary thereof, founded on 
 Patents and the Law of the Land, is known, and may be traced 
 in the following course : Commencing at the stone Mon- 
 ument planted at the South-easi Innit, or corner of Lot No. 25, 
 in the First Concession of Seignory N;). 1, afterwards the Town- 
 8]iip of Kingston ; thence running ah)ng said Boundary Line of 
 Lot No. 25, and of Seignory No. 1, or Tow"nshi[) of Kingston, to 
 a point where it meets and intersects the Boundary Line of Park 
 Lot No. 2 ; thence running along said Boundary to the Front 
 of said Park Lot No. 2 in the Rear ol the Town of Kingston, to 
 ii Post or INlonument planted; tbence running along the front of 
 said Park Lot No. 2, to a Post or Monument dividing Park Lot 
 No. 2 from Park Lot No. 1, or Park Selma, in the Rear of the 
 Town of Kingston, to a Post or ]M<>nument planted; Thence run- 
 ning along the front of Park Lot No. 1, or Park Selma, in tlie 
 Rear of the I'own of Kingston, to a Post or MoiuimenI planted; 
 then< e running from said Po>t or Mouument in a Line of direc- 
 
40 
 
 MENTORIANA. 
 
 [Part 3t 
 
 
 M«* 
 
 (ioii boundiiit; llic fsuiil Park Lot No. I, or [*ark Scliua, till it 
 reaches and strikes the Diagonal Boundary lAim of Lot No. 25, 
 or lioundarv of Captain Michael Crass's Land, and of the Town- 
 shi|) of Kingston ; thence running along said Boundary Line to 
 the Rear of tlie First Concession. 
 
 The ahove and foregoing description gives the coursed and dis- 
 tances of tiic true Line and IJoutidary of the Township of King- 
 ston, a!id is an ans^ver to the QiK^stion of " A Suhscriher" : 
 " What is the true Line of Survey or Boundaiy oi tlie Township 
 of Kingston, limiting the Town of Kingston, and constituting the 
 true, unalterahle aixl permanent Boundary thereof, established by 
 Patents and the Statute Law of the Land.^" 
 
 [n closing this Comniiinicati(»n for the information and interest 
 of 'the public, " Mentor" is not aware of any errors or mistakes 
 committed by him ; but should any be discovered througb infor- 
 mation from the first settlers in the Province and Town, or from 
 authorized and li( .used Surveyors, or from the Surveyor Gener- 
 al's Ofiice, tlie writer would be mucli gratified in having the same 
 corrected, by being clearly staled and proved through the medium 
 of your p>>per, to the satisfaction of the "Subscriber" and of the 
 
 public* 
 
 MENTOR. 
 
lis- 
 
 Pi.il nil.) 
 
 INIICNTORIANA. 
 
 41 
 
 rp 
 
 J'lIE FOUrtTII PART. 
 
 COiniTIIJIWICATIOIVS 
 
 On Patent Rights and Statute Law of the Province of Upper 
 Canada, or l^aw of the Land, published in the " Kingston 
 Herald," between t!ic years 1839 and 1844. 
 
 Mr. Editor, 
 
 " A Subscriber," in your })aper of the 18th instant, has pro- 
 posed three Questions for the information and satisfaction of the 
 public, which, from their importance and the general interests they 
 involve, arc entitled to discussion. " Mentor," who, on a former 
 occasion, replied to several Questions proposed by the same "Sub- 
 scriber," on the true Boundary Lines of Scignory No. 1, and 
 Common Cataraqui, afterw^irds, under dillerent limits, the Town- 
 sliip and Town of Kingston, now submits for insertion in your pa- 
 per Answers to the three Questions proposed for solution. 
 
 Question 1 st. — " What facts, in tlie early history of the Lines 
 of Survey, and of tlie Province of Upj)er Canada, produced the 
 erroneous and defective Boundary Lines, and consequent litiga- 
 tion?" 
 
 In answer to this first Question, reference must be made to the 
 early history of the Lines of Survey in the Province, and the 
 causes of erroneous and defective Boundary Lines, and of conse- 
 quent litigation, must be (levelo})ed and stated. In the year 1783, 
 Deputy Surveyor General Collins, under the authority and by in- 
 structions from General Ilaldiniand, Go\(M-nor of the Province of 
 (Quebec at that period, surveyed Seignory No. 1, af crwardf., un- 
 
 li 
 
12 
 
 MENTORIANA. 
 
 li 
 
 LPmt lilt. 
 
 (ler (lilltTont liniils, the Townsliip of Kiiigjston, to wliicli lie as- 
 signed Limits ami Boundary Lines by })lanting Monuments at llio 
 lour corners of Seignory Nt). 1, and afterwards, under ditl'erent 
 limits, the Townshij) of Kingston. Subsequently, in tlie year 
 1784, bo placed or planted Posts at tbo front corners of eacb and 
 every Lot, respectively, In tbe First Concessit)n of Seignory No. 
 1, and afterwards, under dillercnt limits, the Township of King- 
 ston, from No. 1 to No. 25, inclusive, whoso extreme Eastern 
 Boundary Lino constituted the Eastern limit or Boundary of 
 Seignory No. 1, afterwards, under dilVerent limits, tbe Townshi[i 
 of Kingston. The side Linos of tbe respective Lots from tbe 
 front Posts or monuments, in tbe First Concession, regulating tbe 
 width and extent of eacb Lot in the rear of tbe First Concession, 
 were not extended and run out in tbe year 1784; but between 
 the years 1784 and 1792 tbcy wore run out by a Deputy Survey- 
 or, under the authority of tbo Governor of Quebec, by the Mag- 
 netic Needle, or Compass. From attraction, and variation, and 
 other causes, the Magnetic NcetUe or Compass produced errone- 
 ous and defective Boundary Lines. From this fallible guide, tbo 
 width and extent of tbo respective Lots in tbo rear of tbe First 
 Concession of Seignory No. 1 , afterwards, under dillei ent limits, 
 tiie Township of Kingston, did not agree witb the width or ex- 
 tent existing between tbe Posts or Boundaries planted by Dei)U- 
 ty Surveyor General Collins, in tbe front of the First Concession, 
 in the year 1784. Ilenco originated the erroneous Lines of Sur- 
 vey, caused by tbe attraction and variation of the Magnetic Nee- 
 dle, or Compass ; and bonce arose disputes and litigation, which 
 were strengthened and increased by tbe issuing of Patents that 
 embraced as y;roat an extent in rear as in front. Tbo conten- 
 tion and controversy have continued to the present time. 
 
 In tbo year 1792, Governor Simcoe assumed the Government 
 of tbe Province of Upper Canaihi, now Canada West, who grant- 
 ed and issued Patents to the holders of Lots of Lanil on tbe faith 
 
Part nil.] 
 
 MENTORIAW. 
 
 13 
 
 and 
 
 laith 
 
 <»( (iovonimonl, cinlinicing ll.o i^oyalisls and their Heirs, <'»>n- 
 fonnahly to the Ma[) and lleport of Deputy Survoyor General 
 Collins. Patents were issued in accoiihuice with the true Lines 
 (h'lineated on tlie Map, e\hil)iting the same wickh or extent given 
 to the Lots in the rear of the First Concession, as ajrreed with 
 the distance between the Posts or Boundaries planted in the front 
 by l)ci)uty Surveyor General Collins, in the year 1784. Hence 
 arose the discrepancy anil disagreement between the course and 
 distance described in the Patent and the actual existing Lines of 
 vSurvey on the ground. Hence arose a second cause and origin 
 of contention, litigation, and Law Suits. The Courts of Justice 
 could alford no relief to the litigants and dis])utants, without the 
 aid, interference, and authority of the Legislature of the Country. 
 To their power and authority application was made hy ])oth par- 
 ties, for the enactment of a Law or Laws, whereby a remcdv 
 could be administered to the evil results and consequences, and 
 wherehv the Inhabitants could be relieved from incessant liti<va- 
 tion and endless expense. Accordingly, in the years 1798 and 
 1818, Laws were enacted by the Legislature of the Countrv, 
 (See Appendix,) recognizing and confirming the original Boun- 
 dary Lines of Survey and limits of Seignory No. 1, afterwards, 
 under dill'erent limits, the Township of Kingston, and in accord- 
 ance with the Maj), Survey and Reports of Depulv Survevor 
 General Collins, in the year 1783; confirming the courses and 
 distances expressed in the Patents, and also recognizing and con- 
 firming the true Boundary Lines of the respective Lots in the 
 First Concession of Seignory No. 1, afterwards the Township of 
 Kingston, and through its extent by a parallel Loie of Survey of 
 each and every respective Lot, from No. 1, the Western unalter- 
 able Boundary and limit of Seignory No. 1, afterwards the 
 Township of Kingston, to No. 25, constituting the Eastern Boun- 
 dary and limit of Seignory No. 1, or Township of Kingston. 
 
 Thus, hy the Law of the Land, or Statutes of the Province, 
 
44 
 
 MENTORIANA. 
 
 [Part Uh. 
 
 the disputed Boundurics or Lines of Siuvov, and consocjuent riglil 
 of Possession, arc settled on the basis of hiw and equity, and this 
 legal and elfectual remedy was adopted to correct erroneous and 
 disputed Boun(huies, and to secure and estahlish the rights of 
 Property in the patentees and heirs of the Crown, on a perma- 
 nent basis, and in accordance with their Patents. 
 
 Question 2nd. — " Wliat remedy was adopted to correct erro- 
 neous Boundary Lines of Survey, and to settle disputed Rigiits, 
 by establishing them on a true and permanent basis ; and in ac- 
 cordance with the Patents ?" 
 
 In answer to the second Question, it is obvious from tlie facts 
 above stated, in reply to the first Question, that there existed no 
 relief, and none was to be obtained from the Courts of Justice. 
 When Patents were granted and issued, the holder, by the erro- 
 neous Line of Survey, retained possession of some of the Land 
 belonging to the patentee, through the uncertain Phraseology con- 
 tained in the Deed, under these words, "more or less," afhrming 
 that the Claimant, by Patent, must relinquish his right, and be 
 content with the less quantity of Land within the line of the 
 Magnetic Survey, and be governed by the word " less," ox[)res- 
 sed in the Patent. On the other hand, the holder of the Patent 
 contended, that the true Line expressed in tlie Patent embraced 
 more Land than was contained within the erroneous and defective 
 Line of Survey, and tliat the right to the Land was given to him 
 by the word " more," expressed in the Patent, and confirming to 
 him his just quantity, and no more. It is obvious, then, that the 
 interference of the Legislature was necessary, and that no relief 
 could bo obtained from the Courts of Justice and Law, without a 
 Law or Laws enacted for their government and guidance. In 
 order, then, tjiat the public may be satisfied that the Statutes of 
 the Province, or Law of the Land, recognize the original Boun- 
 daries and true Lines of Survey, in contradistinction to the erro- 
 neous and defective ones, and that they confirm the patentee, or 
 
 1 
 I 
 

 I'ail Kh.J MKNTOin.WA. 45 
 
 licir of (lie Crown, in liis liglit (<> llic l('i;iil iiml Iriic Lines of Sur- 
 vey t'xj)ross(Ml in liis Patc'iit, ninl lo (lie possession of liis (jninilily 
 of Ln!i witlilield from liinn, a reference to (ho Statutes, or Law 
 of tlio Land, will be conclusive. 
 
 QuESTioiv 3rd. — "Is the remedy of tlie Law of the Land or 
 Statutes of the J'rovince applicalih' ((» the cir( unistances of the 
 Province, and the only basis on which erioneous liines ol' Survey 
 are corrected, and disputed rights scjttled in accordance with the 
 Patents ?" 
 
 In answer to this Quefition reference must be made to the 
 Statutes of 1798 and 1S18, the Law of the Land. Tlie former is 
 entitled "An Act to ascertain and establish on a j)ermanent foot- 
 ino- the Boundary Lines of the dillerent Townsliii)s of this Pro- 
 vince," and the latter is entitled " An Act to ascertain and estab- 
 lish on a permanent footing the Boundary Lines of the diderent 
 Townships in this Province, and further to regulate the manner 
 in which Lands are hereafter to be Surveyed." In the clauses 1, 
 2 and 3 of the former Statute or Law, (See Appendix,) and in 
 the clauses 2, 3, and 4, of the hitler Statute or Law, (See Appen- 
 dix,) the mode and course to be pursued for the eslabli>innent of 
 true Lines of Survey and Bomuhiries in contradistinction to er- 
 roneous and (lef(>ctive ones, is plainly declared. The Statutes or 
 Law of the Land were enacted for the benefit and relief of tlu? 
 litis;ants, who could not obtain redress from the Courts of Justice 
 and Law. The Law o( the Land in)[)arts to every man of the 
 fn-st settlers, I he loyalists and their heirs, being patentees of the 
 Crown, their (juantity of Land ex})resse(l in the Patents, and no 
 more. Thus injustice and oppression arc remt)ved. Shall jus- 
 tice^ be violated, and the Land be retained and withheld from its 
 true owners, the patentees or heirs of the Crown, by usurped pos- 
 session and illegal occupancy ? Shall the monstrous opinion be 
 maintained that from the lapse of a few years wrong shall become 
 right, and right becctme wrong ? That injustice shall become jus- 
 
 
 4 
 
IG 
 
 MKXTOKM W A. 
 
 I*« 
 
 \V»vt 111,. 
 
 tiro, and tlia< (Ihtc is no |.rof(M'li<ni ;iii(l remedy aojiinst spoliatiiui ? 
 If Courls ofJiislice and I.aw do )ind i»re<;edenls lor siicli and 
 similar decisions, it is nnaltcr of tonorafulation that fiio Loi^isla- 
 tiire of the Counlry have exertised ilieir |)ow(>r and anllioriu- in 
 «Mja(:tin;r the Laws lliat ^\\v protccticwi and relief, and that restore 
 t.» patentees and heirs of the Crown (heir ris-hls and property. 
 Herein I allude to the monstrous doctrine .' ndjei^^al opinion main- 
 tained hy the advocates and supporters of Adverse Possessicm, 
 which, hein.u; modified or (,ua]ilic,i hy clr,-umstanc,»s, does ap- 
 ply to dispute.! cases of grantors an.l orantoes ; hut is by no means 
 applicable to this n.untry, and to the ci.ses of patentees and heirs 
 of the Crown, in which the Statutes of the Province or Law of 
 the Land, by establishing true Bonndari(>s and Lines of Survey in 
 eontradistinction to erroneous and difective ones, and thereby se- 
 curing possession, set aside this unjust i)rin(uple and rule of d(.- 
 eision, and restore to the patentees or heirs of the Crown their just 
 (piantity of Land, and no more, withheld by holders under the i)lea 
 or claim of usurped occupancy. 
 
 Is the clause of limit;iH(.n adduced in sui)port of the title of 
 adverse possession, or usurjx'd occupancy, by its advocates and 
 supjtorters, to the exclusion of (lie |)atentee or heir of the Crown 
 the owner of the Land by Patent and Law of the Land ? 
 
 This plea or title cannot be admitted as a rule of decisicm, for 
 in the Statutes or Law of the Land there is no limitation clause 
 inserted or to be found in support of the plea, claim or title of ad- 
 verse possession or usurped occupancy. By the Law of the 
 Land, it is then obvious that jiatent rights are secured, justice ad- 
 ministered, and property protected. 
 
 An appeal in all cases of illegal and unjust decision will bo 
 made from the Circuit Courts to the superior Court of Law in 
 Toronto, and ultimately to her IVIajesty in Council ; but it may 
 confidently be presumed that public e\pec(ati<m will not be dis. 
 appointed,^ when, after mature deliberaticm in cases of appeal, the 
 
I 
 
 I 
 
 l*;<ri nil.] 
 
 MKXTORIANA. 
 
 17 
 
 iii(l);uiciii (»r ilir sii|;«'ii()i ('(tiiil o!" J.aW in Torniilu will \tv juo- 
 iiniiiici'd ii|inii |(iiii(i|il.'s not n'|)iioiiiiiil ((» |tiil(nh'«l rii^lils, iind luA 
 snl)\t'i\si\»' of (lie ],ii\v olllit' Land. 
 
 MENTOR. 
 
 Oclober 25tli, 1812. 
 
 J 
 
 Mil. Editou, 
 
 " A Sul>s( rihei" [)r()[u).'(;s tlit; following Question to be solved 
 l»y "Mentor" in your [uipLM-, as being ctinnectcd with the prece- 
 ding Questions that have occupied tlie attention of tiie public. 
 
 QuKSTioN.— " Have the Statutes of 1798 and 1818 or Law of 
 the Land, been acted upon or carried into ellecl; t lie tiue Boundary 
 Lines of Seignory No. I, and Conrniion Cataraqui, afterwards, 
 under ditferent limits, (he Township and Town of Kingston, and 
 the Lines of Survey of the respective Lots in the Township of 
 Kingston, been rec()gnized and established, on a permanent basis; 
 thereby securing to the Patentees or Heirs of the Crown, the pos- 
 session of their Land, and setting aside tlie title and claim of ille- 
 gal and unjust occuj)ancy." 
 
 In answer to this Question, the facts and circumstances that 
 alfet-t and are connected with it, and were de\ eloped and stated 
 between the years 1818 and 1844, must be enumerated for the 
 information and satisfaction of the public, in order that "Mentor" 
 may arrive at the conclusion, that the Legislature liave enacted 
 the Statutes of 1798, 1818, 1837 and 1838, for the purpose of 
 securing to the Patentees, or Heirs of the Crow^n, the rightful 
 owners of Land, their property, and also oi' enabling the Courts of 
 Law in their decisions to set aside the title or claim of illegal and 
 unjust occupancy. 
 
 In the year 1833, or about that period, on application by the Ma- 
 
48 
 
 MiONTOlUANA 
 
 [Pan 111.. 
 
 I 
 
 f;istiiil(s (>r du' Miilliiiul Dislrict t(» (Ir- Licnilciuuit (i()\('rni)r ol 
 <ln' I'roviiicc, piiiyiiio; tluit ho would dirccl ihf MonuriKMits (»i 
 lioiimliirios ol" (he Ti>\viisliij) to be ascortaincd, cstcildi>lK'd, uiid 
 rrcctc'd, iiirrcciildy to tlio oriojual Siirvoy l»y Dcpiily Surveyor 
 (leiiend Collins, in the year 1783, the Western Boundary 
 Line of Seignory No. I, afterwards named the Township ol 
 Kins;.ston, was ascertaincui and re-surveyed hy W. II. Kilhorn, 
 Deputy Surveyor, and cstahli.shed on a permanent basis, conlorni' 
 ably to the provisions ol the Statute of 1798, the Law of the 
 Land. 
 
 in the years 1837, 1838, Boundary Line Commissioners were 
 appointed under a Statute of the Province or Law of the Land, 
 enacted at that time, who were empowered to hear and deter- 
 mine all matters of dispute touchin<;- any Line or Lines, Bounda- 
 ry or Boundaries, of any Township, Concession, or Lot, or of any 
 part or parts of any Lot or Lots, within their resjjective Districts, 
 and to ascertain, fix, and determine, such Lines, Boundaries, or 
 Divisions as shall appear just and reasonable,an(l to gi\e and jiro- 
 nounce such ju<lgin('nt and decree therein. The Statute or Law 
 provides farther that tiie said Boundary Line or Lines to be run 
 hy an authorized Sui\eyor, in accordance witli the provisions of 
 the Statute or l^aw of 1818, and that Monuments shall be phinled 
 on the said Boundary IJne or Lint's: and moreo\er tiial the 
 award, jiidgmenl, or decree ul" said Commissioners shall be pub- 
 lislied three times in the Gazette oi' this Pro\ ince, and in a news- 
 })aper of the District, wherein such a Line shall be. (Sec x\ppen- 
 dix.) 
 
 In the year 1830, u[)on the aj)plicalion of claimants in the Mid- 
 land District, the Board ol' Boundary Line Commissioners held 
 their sittings in the Town of Kingston, and other places, and gave 
 a hearing to the Memorials of the claimants. In nearly all the 
 cases submitted to them, the true Boundaries and Lines of Survey 
 of Lots were ascertained, Momimcnts were planted, and their 
 award, judgment, (u* decree, was published three times in theGa- 
 
 I 
 
 
all the 
 
 ) 
 
 Pail Itli.l 
 
 MFATOKIANA. 
 
 If) 
 
 zollf ol llii; Disdicl vvlitn' siu li a Line la), and in the (jazeUool 
 this I*n)viii(('. Thus was possession ohlaincd i») the Claimants 
 ofthoirjusl quanlity of f^and hy iho decision hy award, judj^- 
 ment or decree of the Hoard oi' Boundary I/nie Commissioners, 
 whose j)ower and authority was derived iVom and under the Stat- 
 ute of 1837, 1838, or Law of (he Land, enahling them to set 
 aside erroneous and defective tjoundary Lines, lo estahlish the 
 true ones on a permanent hasis, and therehy t<) put the Claimants, 
 heinjj; Patentees or Fleirs of tiie Crown, into possession of their 
 fiand, withheld from them hy illegal and unjust ocrupanry. 
 
 From the ahove statement of facts and of those in a former 
 Communication, in the history of Surveying, in connexion with 
 the Statutes of the Province, or t.aw ol the Land of 1708, IBIS, 
 ami 1837, 1838, provided smd enacted for the purpose of estab- 
 lishing true Boundary Lines of Survey on a permanent hasis, in 
 contradistinction to erroneous and defective ones, and to confirm 
 the Patentees or Heirs of the Crown in possession of their Land ; 
 " Mentor " has arrived at the legal and just conclusion — that the 
 Law of the Land or Statutes of the Province, arc solely applica- 
 ble as a remedv, and the sole hasis on which erroneous Lines of 
 Survey are set aside, and disputed Rights are settled ; and that 
 in support and confirmation of this opinion, the Statutes of the 
 Province, or Law of the Land, have been acted upon, or carried 
 into effect ; thereby securing to the true owners of Land their 
 rights of properly, and setting aside the plea, claim and title of 
 usurped possession, or illegal and unjust occupancy. 
 
 November Isl, 1812. 
 
oO 
 
 MIINTORI ANA 
 
 \V.n\ 111). 
 
 Mr. ForroR, 
 
 llavini;- ikmusccI the Communications of " Mentor," on tlio 
 subject ofljijundary Lines oj" Survey and Patented rights, where- 
 in it was clearly slated, and satisfactorily proved for the informa- 
 (ion of the Public, that the Law of the Land is the Rule of De- 
 rision, setting aside the title or claim of ilh^gal and unjust occu- 
 pancy iounded (as supposed by many,) on the aj)plication of the 
 Statute and common Law of England to the circumstances of the 
 country ; " A Subscriber" renew\s a request, and proposes, for 
 solution in your paper, the following Question, as reasonably and 
 necessarily emanating from the 3d Question in the preceding 
 Communications. 
 
 Question-. — " Is the Statute and common Law of England the 
 Rule of decision for Boundaries, Lines of Survey, and Patent 
 Rights, when the Laws of England, in cases of Patentees or 
 Heirs of the Crown, are inapplicable to the circumstances of the 
 <(>untry, and are at variance and repugnant to the Statutes of the 
 Provincial Legislature enacted in the years 1798, 1818 and 1837, 
 1838, as the Law of tiie Land, and sole Rule of Decision iji the 
 <ases of Patentees or Heirs of the Crown, against the claim of 
 usurped possession or illegal occupancy." 
 
 In answer to this Question, the same course must be pursued 
 as was adopted by " Mentor" in a statement of facts, in refer- 
 ence to I he History of the Country, in its varying circumstances, 
 from the year 1783 to the year 1841; thereby shewing thai the 
 Laws of iMigland are inapplicable, as a Rule of Decisi(»n, for 
 Koiuidaries, Lines of .Survey, and Patented Rights, and if adopt- 
 ed would subvert and destroy those Righls, and, setting aside the 
 Law of the I^aud, would countenance and embolden illegal occu- 
 pan(\v, or usuip<'(I possession, 
 
 F'<M ihc more < Ir.u iind di^lind understanding ol the (Question, 
 If IS ju'c«\ssar\ todiNidc Ijic wlio|»^ pmod <if time IVoui the \(>ai 
 
 I 
 
I'i.it Kh.J 
 
 Mb^xNTOKI ANA, 
 
 51 
 
 tlic 
 
 178;] to 18 tl, into several scpaialr jjorlions ; assioiiliig (or ono, 
 IIk! period IVoih 1783 to 1792 ; to aiioihor IVoiii 1702 to 1818 ; 
 and to a third from 1818 to 1837, 1838, or the present year, 1813 ; 
 in order that each separate portion of the whole may receive 
 its due consideration, and thus facilitate the settlement of Disputed 
 Rights and conllicting interests, hy liirnisliing a satisfactory an- 
 swer to an in(piirv of liigli imi)ortance and concern to the iidiabit- 
 ants of tlie Province. 
 
 In the period of time between the years 1783 and 1792, notii- 
 ing was accomplished beyond the Survey of Seignory No. 1, al- 
 terwards, under dillerent limits, the Townisliip of Kingston, and 
 the adjacent Seignories, or Townsliips, in the Bay of Qulnte and 
 on tiie River St. Lawrence, by Deputy Surveyor General Col- 
 lins, who assigned to tiic iirst settlers, the Loyalists, their respec- 
 tive Lots of Land, l>y fixed Boundaries on the Ground, and Lines 
 of Survey delineateil on a Map and Maj)S ; of which a copy, or 
 copies, accompanied by a Report, were recorded in the Surveyor 
 General's Ollice in Quebec. During the period above stated, 
 disputes commenced between the holders of Lots of Land ros[)ect- 
 ino- tbe correctness of tbe Lines of Survey pertbrmed by llie l)e- 
 puty Surveyors, but as the first settlers, or Loyalists, occui)ied 
 their Farms, or Lots of Land, on the Faith of Government, and 
 no l^atents had yet been given, or could be issued to them until 
 the Province of Ui)per Canada and its Government was establish- 
 ed, as distinct and separate from the Province of Quebec, thi re 
 was no Law, or Rule of Decision, to which an Appeal might be 
 made by the parties at variance. The conclusion, then, is ob\ i- 
 ous : neither the Statute, or common Law of England, nor the 
 Law of the Land, were applicable to tlie circumstanc.-s of the 
 Country for giving relief to the litigants and disputants; inas- 
 much as the former had not been iulrodnccd, and ihe Intirr had 
 no existence ; and therefbro ilio (|m» stiuii ofKighi and Possession 
 continiied unsetllod I'oi th* p.ilod |i un |7S;? (.. |79> 
 
 :n 
 
62 
 
 MENTOKIANA. 
 
 [Part 4th 
 
 In tli(! pcriotl i»l(iiiio botwccii 1792 and 1818, Pat(Mits wore 
 granted by Governor Simeoo and succeeding Governors, and is- 
 sued to lioldors of Lots of Land, ofllie respective dates of 179G, 
 1798, 1801, 1801, and in subsequent years to tlic present lime, 
 1843, conformably to the Survey, Map and Report of Deputy 
 Surveyor General Collins, and in contradistinction to the errone- 
 ous and defective Lines of Survey run by the Deputy Surveyors. 
 In consequence of tlie issuing of Patents, or Grants, of Lots ttl 
 Land by the Govenmnent, tlie Patentees were secured and pro- 
 tected in their Rights by true Boundaries and Lines of Survey, as 
 expressed in the Patents or Deeds, exchiding the claim of sup- 
 posed legal occupancy, founded ujion tlie Statute Law of the 
 Land 32d George Sd, 1792, set aside and virtually repealed by 
 subsequent Statutes, or Law of the Land, enacted in 179S, 1818, 
 and 1837, 1838, for tlio relief of Patentees and Heirs of the 
 Crow^n. 
 
 Tlie conclusion, or inference, is obvious : Tiie sliort space of 
 time that elapsed between the year 1792 and the years 179C, 
 1798, 1801 and 1804, was a bar and impediment to the claim and 
 plea of Adverse Possession ; it being a title which has its advo- 
 cates and supporters in the Courts of Law and Justice ; but is set 
 aside by tlie Patents, and the interference of the Legislature who 
 enacted the several Statutes or Law of the Land 38th George 3d, 
 1798, 59th George 3d, 1818, and 1st Victoria 1837, 1838, as a 
 remedy providing against the claim and plea of illegal occupancy 
 and usurped jiossession. 
 
 As contention and litigation continued to a period subsequent to 
 the year 1792, and no relief to the litigants was obtained from 
 the Courts of Law and Justice, aid was supplicated by the parties 
 from the Legislature, who enacted the Statutes of 1798 and 1818, 
 as the Rule of Decision, anil which ojierated as a bar or impedi- 
 ment to the claim and plea of Adverse Possession, or illegal and 
 usurped occupancy. By the enactment of these Statutes, 38tli of 
 
MION I'OKI ANA. 
 
 53 
 
 Part Ith.J 
 
 CJeoro-o 3(1, itnd 59ili (.r()(.'nri;c 3(1, (Scr A|>|.«-M(li\,) a Kiilc of 
 Decision was provided lor llie Courts ol Law and .liistiee in tlu? 
 settlement, and adjuslment of dispuled riiilils, l>y protect ini>; the 
 Patentee, or ]Icir of tlie Crown, ai;ainst illeoal occvipancy and 
 usurped possession, by an erroneous Line of Survey. 
 
 The conclusion, then, from the interlerence of the Leoislature, 
 wlio enacted the ahove Statutes, is obvious ; for therel)y the op- 
 eration of the Statute of the 32(1 of Geori-e Si\, was contined to 
 the cases of Grantors and Grantees, or tiieir Heirs, and the Ri^lits 
 of Patentees, or Ifeirs of the Crown, were reco«vnized and cor- 
 lirmed by the Law of the Land, or Statutes of tlie Province, ex- 
 cluding the claim and jdea of Adverse Possession, a titl(> adverse 
 to Patented Ri,<i;hts, adverse to the Law of the Land, antl adverse 
 to Justice, but lavourable to spoliati.m, injustice, and oppression. 
 
 In the period between LSI 9 and 1S22, a Suit was sustained in 
 the Court of Justice by Kirry versus Stuart, in an Acti(m of 
 Ejectment. In the issue of this case, tlie Patented Rights wer(> 
 secured by tlie decision of the Court in favour of the Astronomical 
 Line of Survey, supposed to be desionated in the Patent, and to 
 the exclusion of the magnetic, erroneous and defective i)iie. The 
 PlaintiiV was imt into possession by the authority of the Court. 
 Likewise, in the year 1S22, a similar decisicm was obtained from 
 theCourtofLawand Justice in an Action of Ejectment, Stu- 
 art versus Murney, and the PlaintiiV obtained possession of his 
 Land bv the Astronomical Line of Sur\-ey, supposed to be ex- 
 pressed in the Patent as a due Nortii course. 
 
 In the years 1837, LS3S, a Statute was enacted by the Legis- 
 lature of the Province, authorizing the establishment of Boards of 
 Boinidary Line Commissioners within the sev(>ral Districts in the 
 Province. They wen^ commissioned and empowered to hear and 
 determine all matters of dispute touching any Line or Lines, 
 Boundary or Boundari(>s, of any Township, C.tncossion, or Lot, 
 orofany part or parts of any Lot, or Lois, within their res])ec- 
 
5J 
 
 MKNTOUIAN A 
 
 [Pmi 1th. 
 
 ti\«' Di.sliitis, iiiul !() itsccrliiiii, li\ iiiid dclcrmine siicli Linos, 
 Uomularios or Divisions, as shall a|)[)oar just and reasonable, and to 
 give and pronounce siuli Judgment and Decree, (See Appendix.) 
 The Statute, or Law of the Land, farther provides that the said 
 BounihuT Line Commissioners sliail direct the Boundaries or 
 Lines to be run by an authorized Surveyor, and that the Monu- 
 ments shall be planted on the said ]}oundary Line or Lines. 
 Moreover, that the Award, Jud^mcMit, or Decree, of said Com- 
 missioners, shall be published three times in the Gazelle of this 
 Province, and in a Newspaper of the District, wherein such a 
 Lino shall bo, (See Appendix.) 
 
 In the year 1839, upon the application of Claimants in the 
 Midland ])istrict, the }3oard of Commissioners for the District 
 liold their sittings in Kingston, and other places within the Dis- 
 trict, and gave a hearing to the Memorials of Claimants. h\ 
 nearly all the cases submitted to them, the true Boundaries and 
 Lines of Survey were ascertained, Monuments were planted, and 
 their Award, Judgment, and j)ecree was published three times 
 in the Gazelle of the Province, and in a Newspaper of the Dis- 
 trict, wherein such a Line lay, (See Appendix.) 
 
 In the year 1839, a claim for a true Line of Survey in contra- 
 distincticm to the erroneous and defective ones, (beiuir the mao*- 
 netic and astronomical ones,) and in accordance with the Patent 
 and Law of the Land, was instituted and submitted, by Memorial 
 to the Board of Commissioners, by Stuart the Claimant, versus 
 Herchmer, the Res[)ondent. The Deci.sion of the Commission- 
 ers established the parallel Line of Survey laid down in the Maj) 
 of Deputy Surveyor General Collins, and as exjjressed in the 
 Patent, and recognized and confirmed by the Statute, or Law of 
 the Land, 1st Victoria, 1S37, 1838, to the exclusion of the 
 Reverend William M. Ilerchmer, and to the setting aside of the 
 erroneous Line of Survey. Th(> Claimant, (he Venerable Ceorfo 
 Okill Stuart, was \mi into possession of his just (juantit\ of Land 
 
mi:n'|()kiana 
 
 O.) 
 
 
 r.iit nil. I 
 
 and 110 more, hy a true Line ol vSui vcv, or Bouiidiii \ , es(iililislie«l 
 on a permanent basis, and in accordaiiee willi (lie l*a(en( and Law 
 ol' ihc Land. [Sec Memorial of llie Ven. Ceori;e Okill Sinarl ; 
 Decision and Award ol" Boundary Line; Commissioners in jiart \s{ 
 oltlu) forcgoint;; pages ; xVnswcr <(> (liree Questions in part 4lli ; 
 as also the Statutes of (he Province OHlli (leorge od, 59(liCe()rge 
 3(1, and 1st Victoria 1837, 183S, in tlie A[)pen(lix, and the Dia- 
 gram, in front of Title Page.] 
 
 From the preceding statement <tf facts, and the develojnneiU of 
 the History of the Country, atid i(s Surveys, in their varying cir- 
 cumstances from (he year 1783 to the pres('n( year, l8-t3,"Men(or'" 
 is enabled to arriye at the legal and just conclusion, that the Stat- 
 utes of the Province 3Sth of Ceorge 3d, 59th George 3d, and the 
 1st Victoria, or the Law of the Land, is the sole Rule of Decision 
 in the cases of P- futees or Heirs of the Crown, to the exclusion 
 of the plea, clc>.m, or title of Adverse Possession, which is limited 
 to the cases of Grantors and Grantees, who are not embraced within 
 the provisions and protection of the aforesaid Statutes and Law of 
 the Land. 
 
 In maintaining (he opinion herein expressed, "Mentor" has 
 much satisfacti«m in assuring (Ik^ public, that his sentiiTients and 
 opinion have been confirmed by the Decisions and Judgments of 
 the Courts of Law and Justice in the foregoing cited cases, be- 
 tween the years 1819 and 1823, and also in the case ilccided by 
 the Boundary Line Commissioners, who gave possession to the 
 Claimant, the Venerable George Okill Stuart, in the year 1839, 
 to the exclusion of the Respondent and Holder by usinped occu- 
 pancy, the lleyerend William M. Herchmer, in accordance with 
 Patent Rights, and the Statutes of the Province, or Law of the 
 Land. 
 
 vShould, however, the opinion expressed to (he public be at va- 
 riance with the \icw of the subject cn(ei(aincd by the advoca(es 
 and Nupporlcrs of Adverse PosM'ssion, '^Mentoi''' is aware tha( 
 
 I 
 
aG 
 
 AIE.NTOKIANA, 
 
 Part 4(h.J 
 
 tlii'. |iiilili< would (Icrivc iiiloiiriiilion IVoiii llirir (Joiiiniimiciitions, 
 iiml (lie '■'■ Siiltsciilu".-^' would l»o oialiliod in hoinir favoured, 
 fliioiiu|i )|,(. piililic Press, willMlicir .sentiments and opinion on a 
 »|iM'slioii thill liiis iii\ (lived in its discussion the feelings and inter- 
 ests of the r(»niinuMi(\. 
 
 MENTOR. 
 
 Dciviuher liMU, |8|:>. 
 
 Mi{. Editoh, 
 
 "A Suhscriher" and the puhlie having been favoured with 
 sati,sfa( toiv information, derived from the recent Communications 
 of " Mentor," published in tlu; "Kingston Herald," proposes 
 for solution the following (Question, arising from the silence of the 
 advocates and supporters of the title of Adverse Possession, to the 
 setting aside of Patent llighls and the Law of the Land. 
 
 (Question. — " VVMuit StJilute, or Law of the Land, is adduced 
 in sup|)ort and to niaintiiin the title of Adverse Possession, to the 
 setting aside of Patent Jlights and Law of the Land?" 
 
 In answer to the Question, " Mentor" is awMre that it is un- 
 necessary to repeat what has been published for tiie purpose of 
 shewing that the Statute and common J^aw of England is inappli- 
 cable to the circumstances of the Coimtry, or Province, in the cases 
 of Disputed Boundaries and Patent Rights of Possession between 
 the Patentees or Heirs of the Crown, and the holders or occupants 
 by usurped [)ossession. Jiy the authority and provisions of the 
 Statutes or Law of the Land, 38tli of George 3d, 1798, 59th of 
 George 3d, 1818, the Itulc of Decision is established for the 
 governmrnit juul ouidanfc of the Courts m| J^aw and Justice in the 
 
 
art .Jtli.J 
 
 lications, 
 avoured, 
 m on a 
 11(1 intor- 
 
 TOR. 
 
 l\ut nil. J 
 
 MKN'lOPxlANA 
 
 .)/ 
 
 cd with 
 nications 
 proposes 
 ce of the 
 >n, to the 
 
 adduced 
 1, to the 
 
 t is iin- 
 
 rpose ot 
 
 i inappli- 
 
 the cases 
 
 between 
 
 ccu[)ants 
 
 s ol" the 
 
 o9lh oi 
 
 for (he 
 
 e in tiie 
 
 J 
 
 m 
 
 (ases of Disputed Boundaries aud Lines of Survey belwcen Pa- 
 tentees or Heirs ol the Crown. And the Statute of the Province, 
 or Lawoftiic Land, 1st of Victoria 1837, 183S, hy its authority 
 and provisions, establishes tiie right of possesslc.n in tiie Patentees 
 or Heirs of the Crown, and liecomcs the sole Rule of Decision in 
 the Courts of Law & Justice, to the subversion ol the plea, claim, 
 and title of the hohlers or occupants by usurped possession, and for 
 this evident reason, that no clause of limitation is inserted in the 
 afore-named Statute in favour of the claim or title of the spoliators, 
 and to the rejection of the Patentee or Heir of the Crown, the lawful 
 owner of the Land. 
 
 " Mentor" undertakes to call the attention of the public, arising 
 from the silence of the advocates and supporters of Adverse Pos- 
 session. 
 
 The Law that is adduced by them, in sui)port of their opinion, 
 is known under the title of an " Act to amend the Law respect. 
 in<r Real Property, and to render the proceedings for recovering 
 I)ossession thereof in certain cases less difificult and expensive, 
 and is better known under the name of the Limitation Act." 
 
 It is necessary to recur to the Statute 4th of William 4th, 1834, 
 which embraces and embodies the Statute and common Law ot 
 England, under certain modifications, and has become the Law of 
 the°Land ; and further to ascertain the objects contemplated and 
 embraced within its provisions. They are thus expressed— " To 
 make certain alterations in the Law of Inheritance respecting the 
 conveyance of Real Pro|)erty by Devize and by Deed, and in re- 
 gard to Dower, and the limitation of Ac tions, and Suits, and to 
 simjdifv the remedies for trying the Rights there(<»." 
 
 It is ol>vious, then, and to be remarked, thai the Siutute, or 
 Law 4th of William 4th, 1834, enacted for important objects and 
 puri)0ses, is operatixc in all cases that can from tlicir chaiacicr be 
 cmbiacctl, and ( onic, or be brought under its eounizanee and au 
 Ihority, an<l that relief an<l jusliee will be ol.fiiinrd n\ ;dl eases, 
 
 H 
 
58 
 
 MKN'IOKI ANA. 
 
 (ran -Kti. 
 
 wlini iii»|(li< iitiuii liii.s lici'ii inadr (<» llic CmuiIs n| .Iiislicr and Ijaw 
 widiin (lie period or lapse of (wciily years. 
 
 I J is also obvious and lo bo rcnnaikcd (bat ( ases of Lines of 
 Survey and Bonnihuies, and Patent Rii;b(s (o Land, are not em- 
 braced witbin tbe provisions of (bo 4tli of William l(li, 1831; 
 nor can tbey, by any constructive interpretati(tn of (be Statute, bo 
 included witbin tbe cognizance, autborily, and enactments of tbat 
 Law, baviiig a limitation clause. 
 
 And it is furtber obvious, tbat tbe Statutes 38tb of George 3d^ 
 1798, 59tb of George 3d, 1818, and 1st of Victoria, 1837, 1838, 
 were enacted between tbe years 1792 and 1813, tbe present year, 
 for tbe specilic and im[)Oi tant object of embracing all cases of dis- 
 puted Boundaries, Patent Rigbts, witb possession of Land, wi(b- 
 in tbe true and legal Lines of Survey under tbe cognizance of (be 
 Law of tbe Land, to tbe rejection of Claimants by Adverse Pos- 
 session, founded on tbe 32d of George 3d, 1792. 
 
 And it is of importance failber to remark, tbat in tbe provisions 
 of the afore-named Statutes, or Law of tbe Land, tbere is no re- 
 striction, or limitation clause, wbereby it is enjoined u[)on tbe Pa- 
 tentees, or Heirs of tbe Crown, to bring tbeir Suits witbin tbe 
 limited period of Twenty years, and in tbe event of tbeir inability, 
 01- neglect lo do so, tbe Holder by tbe [)lea, claim, or title of Ad- 
 verse Possession, or usurped occupancy, is enabled to maintain a 
 Rigbt to tbe Land, and to exclude tbe Patentee, or Heir of tbe 
 Crown, from Possession, investing spoliation and injustice witb 
 tbe character of k^gal Rigbt and just Possession. 
 
 " Mentor,"' in reply to tbe foregoing Question, re}»euts tbe 
 opinion, founded on Law and Justice, tbat tbe Statutes of (be 
 Province, or Law of tbe Land, 38di of George 3d, 59tb of George 
 3d, and 1st of Victoria, 1837, 1838, is tbe Rule of Legal Decision 
 and protects tbe Patentee, or Heir of tiie Crown, in (be possession 
 of his quantity of Land, by tbe true Lines of Survey, or Bounda- 
 ries, expressed in tbe Patent, and recognized and confirmed by 
 
 1 
 
rait HI.. J 
 
 ]Ml':Nr()RIANA. 
 
 (he Law ol' tlie Laml, («) die exclusion ol llio Holder by illegal 
 ami usurped occupancy, founded on erroneous and defective Lines 
 of Survey, hut set asi<le by Law and Justice. 
 Fel.ruary 21lli, 1843. 
 
 In closing- this publication, the Author (under the signature of 
 "Mentor") of the foregoing Communications, with the accom- 
 panying Documents, is enabled to cxi)ress and submit to the Read- 
 (M- and to the Public a legal opinion and consequent Decision of 
 the Question, in maintenance of Patent Rights and Possession of 
 Land to the exclusion of the Holders or Occupants by the title of 
 Adverse Possession. 
 
 " Mentor" is aware, and fully sensible, that the Laws of Eng- 
 land, as introduced into this Country, or Province, by the Statute 
 or Law of the Land, the 32d of George 3d, 1792, Chapter 1st, 
 Clause 3d, is the Rule of Decision for all cases of Disputed Boun- 
 daries, or Lines (»f Survey, and Rights to Property in Land be- 
 tween the Grantors and Grantees of Deeds ; but with the excep- 
 tion of the Patentees, or Heirs of the Crown, their Heirs and De- 
 scendants, and for whose relief the Statutes 38th George 3d, 
 59th George 3d, 1st Victoria, 1837, 1838, were enacted and 
 provided. In this first class of cases, the Patentees of the Crown, 
 the Monuments or Boundaries of the several Lots were fixed and 
 planted, and the Lines of Survey or Boundary Linos of the sever- 
 al Lots, or Tracts of Land, were run and established between the 
 years 1783 and 1792, at a date prior to the introduction of the 
 English Laws into the Province as a Rule of Decision. The 
 Patents that followed, and were oranted, and issued subsequently 
 
GO 
 
 MKNTOUI WA 
 
 i'ati -nil. 
 
 to (lie yt'iii I7!)i, aic in acronliiiicf with llic lMa[) id' llic Survey 
 pcrronncd in Httij under (he Kxeeudve Cio\erninen( ol' (Quebec, 
 iuid in jigreeuieiU Nsitli (ho lioimdiu y Lines tluroin d^dineated. 
 F«»r (he lar(her eonrmnatiun of Pa(en( Uiuhts, a Rule of Decision 
 was es(ahlished in (he case of Boundaries and Lines of Survey for 
 (lie Ciovennnen(, and direction of (lie (Courts of Law and Justici^, 
 l>y tlie interference of (he Leglshiture, who enactinl the Laws o( 
 1798 and 1818 for that purpose. 
 
 Moreover, with respect to th(> recovery of Possessi(»n of Lan<l 
 hehl by erroneous and (h-fedivc Lines of Survey, under the ph'ii, 
 chtini, and title of Aiherse Possession of Twenty years, the Stat- 
 ute of the Province, or Law of (lie Land ls( Victoria, 1837, 1838, 
 allorded relief to the Patentees, or Heirs of the Crown, and ex- 
 cluded the occu{)ants by the provisions of the Statute, or Law of 
 the Land, from holding under usurped and illegal occupancy. 
 By this Statute, or Law, a Court of Commission was constituted 
 under (he title of lioundary Line Commissioners, wbo have with 
 an integrity and impartiality creditable to them, in numerous 
 cases, and in a few of special ditllculty, in the Midland l)Is(rict, 
 put into eliect the j)rovision,s of the aforesaid Statute and Law, 
 1st Victoria 1837, 1838, by establishing true Lines ot Survey, or 
 Boundaries, in contradistinction to defective Lines of Survey and 
 erroneous Boundaries, and by jnitting tlie Patentees, or ITeirsof 
 the Crown, into full Possession of their Patent Rights, and of 
 their just (juantity of Land, to the exclusion and expulsion of the 
 Holders by illegal possession and usurped occui)ancy. 
 
 In the other and second class of numerous cases that do not 
 come under, and are not includt'd among Patentees, or Heirs of 
 the Crown, the claims and rights of Crantors or Grantees being 
 disputajits, or litigants, are heard and decided in the Courts of 
 Law and .luslice. '^Flie Sta(u(«' and common J^aw of England 
 beionies (lie Rtdc ol Decision in (liese cases. The\ are cases ol 
 dispiite siibs('(|iicnt in d;ilr lo the in(roduclit>n of the Fni^lish 
 
 I 
 
 ■I 
 4 
 
I'uil nil. I 
 
 MTA roHl ANA. 
 
 Gl 
 
 
 I 
 
 Laws into the Province l>\ ilic Sluliilr ;5 Jd ol (aci.ru;!' 3(1, 1792; and 
 arc n<>t cnnlM'accd williin, and ciiiuiot conic under Hie provisions 
 of the Statute or Law Isl Victoria 1.S37, 1838, 38t!i of Grorjro 
 3d, and 59th of Goorgc 3d, 1818. They are lieard and adjudi-ed 
 in tlic Courts of Law and Justice nccnrdino- to the circmnstances 
 and nature of each case in the conlra<t l)etween tiie two jjarties, 
 ti»e Grantors and Grantees. \ot so, however, in liK> ease of dis- 
 pute and litigation hetweeulhe Palente«'s and Ileirs of the Crown, 
 whose rights are secured to iheni hy the Patent and by tlie pro- 
 visions of the Statute Law of tlu- Land 38th ot George 3d, 59tli 
 of George 3d, 1818, and 1st V^ictoria 1837, 1838, the two former 
 establisliing the true lioundaries, and (he hitter securing to tliern 
 possession of the Land hetween the erroneous Lines of Survey and 
 tiie true Bounihnies wiiicii were eiuuled for the government, gui- 
 (huice and adoption of the Courts of Law and Justice. 
 
 In eonelusion, tiie Author under tiie signature of " Mentor" 
 appeals to tlie sense of right and wrong, of s[)oliat ion and protec- 
 tion, entertained hy the Patentees, or Heirs of tiie Crown, tlie 
 Loyalists, their Heirs and desceiKhmls, and suggests to tiiem tlie 
 duty incunihent on tliem to maintain tlieir claims, as a pledge of 
 gratitude from them to the Government, for the Land granted hy 
 the King as the reward of liieir fathers' h)yalty, and as an ac- 
 knowledgment from the Government of the privations and sulfer- 
 ings endured hy them in sui)port of their King and Sovereign, and 
 his Authority, imd in defence of the Country formerly subject to 
 his paternal and mild Government. This Province was the Asy- 
 lum provided by his ISLijesty George th(.' Third, of revered mem- 
 ory, for faithful and iUiached subjects, who after their settlement 
 in a wild and uncultivated wilderness, soon experienced the lib- 
 erality of a generous and just Sovereign. His munificent Dona- 
 tions ot Land, compensation for their losses in Property, and 
 supplies for the three lirst \ ears of the settlement amidst obstacles 
 iuid dilFiculties lu^arly insu])erable, ar(> not iMpialled in the history 
 • •f anv peoj)le or nniioii under ;in\ other (ioxernmeiit. 
 
 
63 
 
 IMKNTOHIANA. 
 
 [Part 4tli 
 
 Willi Si ir'coll('( lion <»(" lliose rcwnnis, iiiul muler a scnso of llicir 
 \virn\ iind just rights, tlio Aullior under the signature of "Men- 
 tor" is fullv aware and sensible that the Loyalists, their heirs 
 and descendants, «lo and will rej^ard usurped oteupancy, and ille- 
 mi\ possession, ami en( roachment up(m their Patented Rights and 
 estates, with feelini^s of indignation and discontent towards the 
 holders hy injustice and spoliation ; hut towanls the Goveninent, 
 they will cherish the feelings of gratitude and h)yalty, and more- 
 over they will justly a|>preciate the legacy of Land left to them hy 
 their fathers, and to which they will adhere with associations of 
 fond attachment. 
 
 The Loyalists, their Heirs and Descendants, will submit their 
 claims to the Courts (»f Law and Justice, reposing full confidence 
 in the integrity, im])artialily and independence of men, who are 
 commissicmed to atlminisler Justice, and who will be guided in 
 their decision and iudgmcmt bv a strict maintenance of the ritrhts 
 of the Patentees and Heirs of the Crown, and a omscientious ad- 
 herence to the provisions of tlie Statutes of the Province or Law 
 of the Land, establishing the Boundaries and Lines of Survey on 
 a permanent basis, and tluTeby securing the rights of Land in the 
 »)riginal Patents to the Loyalists, their Heirs, and Descendants. 
 Sic Stat Lex Scripta : Fiat Justitia. 
 
 THE AUTHOR. 
 

APPKNDIX. 
 
 APPENDIX. 
 
 Act 59111 of Cicors:c 3d, 1818. 
 
 An Act U> ascertain and esltthlisli, on a permanent footing, tlio 
 Bonndiirv J/nies oi" the dilVerent Townships in this I'rovinee, 
 and rnrther, to leguhile tlie manner in which Lands arc here- 
 after to he Surveyed.— [Chap. 14, 59tli George 3d. 
 
 Section 2d.-— And whereas it is necessary to extend the pro- 
 visions of an Act, passed in th( Tliirly Eighth year of his Majes- 
 ty's Reign, entitled " An Act to ascertain and estahlisii, on a 
 permanent footing, tlie lioundary Lines of the dillerent Tow-n- 
 ships," Be it e»iacted, hy llie authority aforesaid, that all Boun- 
 dary Lines of Townshi[)S,' all Concession Lines, Governing Point.s, 
 and all Boundaries, I'osts or Monuments, w hich have been placed 
 or planted at the front angh^s of any Lots, or Parcels of Land, in 
 the first Survey, intended to determin«; the width of such Lots, or 
 parcels of Land, j)rovided such Survey has been performed under 
 the authority of the Executive Government of the late Province 
 of Quebec, or under the authority of the Executive Government 
 of this Province, shall be, and the same are hereby declared to be 
 the true and unalterable Boundaries of all and every of such 
 Townships, Concessions, and Lots, respectively ; and that every 
 Lot or Parcel of Land, respectively, whelhei- it shall, upon ad- 
 measurement, be found to contain the exact width or more or 
 less than what may be expressed in any Letl<'rs Patent, Grant, or 
 other instrument, in respect of such Bomidaries or Lines mention- 
 ed and ex|)rc.ssed, shall embrace the whoh; width contained be- 
 tween tlie front Posts, Monuments, or Boundaries, planted or 
 placed at the front angles ol' any sncli Lot, or Parcel of Land, as 
 aforesaid, in such original Survey, ;is aforesaid, and no more nor 
 less, and every half or quarter of such Lot, (»r Parcel, its propor- 
 ti( n, any thing in such Patent or Instrument to tlie contrary there- 
 of in any wise notwilhslanding. 
 
 Section .3d. — And be i( further eiiiidcd by llic iiulhnrllv afore- 
 said, That the Boundiir\ Line ..feiirhiiud e\er\ 'I'ownshi)), <'ii 
 
APPENDIX. 
 
 II 
 
 \ 
 
 that side from whicli the Lots are numbered, shall be, and the 
 same is hereby declared to be the course, or courses, of the re- 
 spective Division, or Side Lines, throughout the several Town- 
 ships and Concessions of this Province, respectively, and all Sur- 
 veyors shall and are hereby required to run all Division or Side 
 Lines, which they may be called u})on by the owner, or owners 
 of any Lands, to Survey, to correspond with, and be parallel to 
 the respective Town Lines, from whence the Lots are numbered, 
 as aforesaid. 
 
 Section 4th. — And be it further enacted by the authority 
 aforesaid. That every licensed Surveyor, when, and as often as 
 he is employed lo run any Side Line or Limit between Lots or 
 Lines, required to go the same course of the Side Lines or limits 
 between Lots in the Concession in which the Land to be Survey- 
 ed lies, shall, if it has not been done before, or if it has been done, 
 but the course cannot at such time be truly ascertained, determine, 
 by a true meridian Line, or some other infallible method, the true 
 course of a straight Line between the front and rear angles of such 
 Concession, on that Boundary of the Township from which the 
 Lots are numbered, and run such Line or Lines as aforesaid, truly 
 parallel to such course, which is hereby declared, and shall at all 
 times be deemed and taken to be the true course of such Lines in 
 the several Townships of this Province. 
 
 in 
 
 Act 38tli of George Scl, 1798. 
 
 An Act to ascertain and establish on a permanent footing the 
 Boundary Lines of the ditferent Townships of this Province. 
 
 Whereas it is expedient and necesssary to ascertain and estab- 
 lish, upon some permanent jirinciple, the Boundary Lines of the 
 diiferent Townships within this Province, and distinctly to pre- 
 serve them when so ascertained and established : Be it enacted 
 by the King's most excellejit Maje-y, by and with the advice and 
 consent of the Legislative Council and Assembly of the Province 
 of Upper Canada, constituted and assembled by virtue of and un- 
 der the authority of an Act passed in the Parliament of Great 
 Britain, entitlccj an "Act to repeal certain parts of an Act passed 
 
 II 
 
 i 
 
Ill 
 
 API'ENDIX. 
 
 in the fourtoeiith year ot his Majesty's Utign, onlitlcil an Act for 
 making more ell'ecdial provision lor tlie Government ol' tlie Pro- 
 vince of Quebec, in North America, and to make furtiier provis- 
 ion for the Government of said Province, and hy authority of llie 
 same, that Stone Monuments, or Moiunnents of otiier durabh^ 
 materials, shall he placed at the several corners, governinii; points, 
 or off-setts, of every Township that hatli been surveyed, or may 
 hereafter be surveyed ; and also, at each end of the several Con- 
 cession Lines of such To\vnshM)s, and that Lines from the Monu- 
 ments so erected, «)r to be erected, he taken and considered as the 
 permanent Boundary Lines of such Townships and Conce^siolls 
 respectively. 
 
 2d. And' be it further enacted by the authority aforesaid, that the 
 Monuments above directed to be j)laced as afore-mentioned, shall 
 be placed under the inspection and order of the Surveyor Gener- 
 al of this Provi"«ce. 
 
 3d. And be it further enacted by the authority af(jresaid, that the 
 courses and distances of the said iSoundary Lines so ascertained 
 and established, shall, on all occasions, be, and be taken to be, the 
 true courses, and distances of the Boundary Lines of the said 
 Townships and Concessions, whether the same do, or do not, on 
 actual measurement, coincide with the courses and distances in 
 any Letters Patent, or Grant, or other instrument, in respect of 
 such Boundary Lines mentioned and expressed. 
 
 5th. And be it further enacted by the authority aforesaid, that it 
 shall not be necessary for the Surveyor General to proceed to car- 
 ry the provisioits of this Act into exi^cution, until an a[)plication 
 for that purpose shall luue been mad*; to the G(n ernor, Lieuten- 
 ant Governor, or person administering the Government, by the 
 Magistrates of any District or County, not being part of a District, 
 in Quarter Sessions assembled, signifying that the erecting of 
 such Monuments as aforesaid is necessary and e\])edient for some 
 j)articular Township or Townships within such District or 
 County. 
 
 Act 1st Victoria, 1837, 1838. 
 
 An Act to authorize the establishment of Boards of Boundary 
 Line Commissioners within the several Districts of this Province. 
 
 PREAMIiLK. 
 Clause 1st.— Whereas the errors or delects in Surveys here- 
 
APPENDIX. 
 
 IV 
 
 here- 
 
 tofore made wllliin lliis Provinco, arc found to ocrasion disputes 
 and ditlL'roiU'es Itctwcon individuals touching the Boundaries of 
 Townships, Concessions and Lots, and to involve parties in ex- 
 pensive litii>ation ; and whereas it is expedient to provide a re- 
 medy for these evils hy tlie appointment of Commissioners in 
 every District, with tlie powers and under the restrictions here- 
 inafter expressed ; he it therefore enacied by the Queen's Most 
 Excellent Majesty, hy and with the advice and consent of the 
 Le<>;islative Council and House of Assembly of the Province of 
 Upper Canada, constituted and assembled by virtue of and under 
 the authority of an Act passed in the Parliament of Great Britain, 
 entitled, "an Act to re[)eal certain parts of an Act passed in the 
 fourteenth year of his Majesty's Reign, entitled, ' an Act for ma- 
 kino; more eilectual provision for the Government of the said 
 Province,' " and by the authority of the same, that from and after 
 the passing of 111 is 'A(t, it shall and may be lawful for the Lieu- 
 tenant Governor of this Province, to nominate and appoint three 
 fit and proper persons in each and every District of this Province, 
 (one of whom shall be a Licensed Surveyor,) to form a Board to 
 be known by the style and title of The Boundary Commission- 
 ers of the District' for which they shall be so respectively ap- 
 pointed ; and the said Commissiont^s for the time being, shall have 
 power and authority, and are hereby authorized and re([uired, to 
 hear and determine all matters of dispute, touching any Line or 
 Lines, Bomidary or Boundaries, of any Township, Concession, or 
 Lot, and to ascertain, fix, and determine such Lines, Boundaries, 
 or Divisions as shall a|)pear just and reasonable, and to give and 
 pronounce such judgment and decree therein, and to awaro exe- 
 cution tbereujxm for such costs as shall, by the said Commission- 
 ers, be ascertained to have been reasonably incurred against the 
 goods and chatties of all and every, the person and persons whom 
 they shall decree to ])ay the same, as to them, or any two of them, 
 shall seem just in Law" or Equity; and that the acts, orders, 
 judgments, and decrees of the said Commissioners, or any of them, 
 shall be final and conclusive between the Parties, their ITeirs and 
 Assigns, except in cases of App<!al, to be brought within the time 
 and in the manner hereafter mentioned ; Provided always that 
 the said Commission(>rs shidl be appointed, and hold their office 
 during the pleasure of tiii! Lieutenant Governor, and no longer. 
 
 Clause 7tb. — And be it further enacted by the authority afore- 
 said, that ])n>vious to the hearing ol~ any cjuestion imder the pro- 
 visions of this Act, the said Couiniissi(»ners shall, if recpiired by 
 
 I 
 
APPENDIX. 
 
 any of the parties Interested, proceed to and view the Boundary 
 or Boundaries in dispute, in their own proper i)ersons; and it shall 
 be lawfid for them, and they are her»3by refpiired, to emjdoy a 
 competent Surveyor to make a Map or Survey thereof, which 
 Map shall be annexed to and tiled with their judgment and de- 
 cision as hereinafter provided. 
 
 Clause ITtli.—And be it further enacted by the authority 
 aforesaid, that every Judgment and Decision of the said Commis- 
 sioners, in case there be no Appeal against tlie same, shall bo 
 filed on the records of the said Court of Chancery, within one 
 Calendar month from tlic expiration of (he time of ap])ealino- 
 against the same, togctlier with the said plan of the Boundaries 
 hereintoforc directed to be made; and the Judgment and Decree, 
 and all orders of the said Courts of King's Bench and of Chan- 
 cery, establishing any Line or Linos of 13()undary upon such an 
 Appeal, shall, together with said Plan bo filed witli the Register 
 of the County where such Boundaries shall be situate, within six 
 months after the determination and })r()nouncing of the same ; and 
 the said Register shall be entitled to a fee of one shilling and three 
 ponce, and no more, for entering the same of Record ; and a co})y 
 of said Map duly authenticated, and of all Judgments, Decrees, 
 and Orders affecting any Line or Lines of Boundary, slmll in like 
 manner, be filed in the Office of the Surveyor General of this 
 Province, for jniblic use and reference ; and such final Qrder, 
 Judgment, or Decree, shall in all cases, be published three times 
 in the Gazette of this Province, and in a Newspapcsr of the 
 District wherein such Line shall be, if a Newspaper shall be pub- 
 lished tlierein, and if not, in the Newspaper of the adjoining Dis- 
 trict. 
 
 In the (iueeu's Bench. 
 
 GEORGE OKILL STUART, ) Judgment on Appeal from 
 AND > Boundary Line Commis- 
 
 ALEXANDER & OTHERS. ) signers. 
 
 Upon an Api)lication of George Okill Stuart to have his 
 Eastern JJoundary o{ Lot Number Twenty-four in the 1st Conces- 
 sion Township of Kingston, produced to its full length, and made 
 l)arallel with the Western Boundary of Lot Ninnber One in the 
 same Concession — 
 
APPENDIX. 
 
 VI 
 
 The Commissioners liavt.' miido tin; follow ing Docroo — "That 
 llie Eastern Side Line of the said Lot No. 2i in the 1st Conces- 
 sion of Kingston, sliall ho a line drawn, commencing at a Stone 
 Monument marked 24-25, standing on or near the hank of Lake 
 Ontario, at the limit hetwoen th(>- Vencrahle George Okill Stuart's 
 Lot 24 and Lot 25, helonging to the estate of Henry Murney, in 
 the 1st Concession of the Township of Kingston, and at a ])oint 
 South 4 deg. 3 min. 10 sec. East astronomically of another Stone 
 Monument marked 24-25 R, 1st Con. (|>hiced in a hole drilled in 
 the rock on which it stands, tilled up with lead, and lead crossed, 
 and also a cross on the top of the monuirKMit,) exactly at tlie place 
 of the original post at the front angle ixtwecu said Lots 24 and 25 
 — Then North 4 deg. 3 min. 10 sec. West astronomically parallel 
 with the Boundary Line of No. 1 in said Concession, along the 
 present Side Line hetween said Lots 24 and 25, to its intersec- 
 tion with the original Eastern Boundary Line of said 1st Conces- 
 sion as run hy the late John C(»llins, Escp, Surveyor General in 
 1783, at which intersection there is a Stone Monumf^nt marked 
 24—25, ])laced with glass or earthenware heneath it, and also 
 marked with a cross on the top exactly at said intersection — Then 
 along said original Eastern Boundary Line of said 1st Concession 
 North 27 deg. 6 min. West astronomically until the same shall 
 intersect the North Easterly Limit of Store Street produced — 
 Then South Easterly along said Limit of Store Street to its inter- 
 section West of S. Wilmot's Western Limit of the Town of King- 
 ston run in 1818, and at his Western Limit of West Street — Then 
 North West(>rly along said Western Limit of said Town as run hy 
 Wilmot aforesaid, to a Stone Monument to he planted at a point 
 40 feet Westerly from the South Western anghi of tlu; Lot granted 
 to the late Mrs. Magdalen Ferguson, and in line with the South- 
 erly Limit of said Lot — and from thence Northerly in a direct 
 line to a i)oint where a Stone Monument is to he placed on the 
 North Easterly angle of said Lot No. 24, which point is forty feet 
 Southerly of the Stone Monument [)lante(l hy P. V. Elmore, De- 
 ymty Provincial Surveyor, in 1831, under and in accordance with 
 the Statute of 1797, at the original South Easterly angle of Lot 
 No. 24, 2d Concession of Kingston, and in line with the Eastern 
 Limit of the said Lot No. 24, 2d Concession of Kingstim; — That 
 durahle Stone Momnnents he placed at the points designated wliere 
 not already done; that the ex[>ens(!s incurred in this matter shall 
 be paid hy the Claimant, when the amount thereof shall he ascer- 
 tained." 
 
 ill 
 i 
 
VII 
 
 APPENDIX. 
 
 Chief Justice Rohinsox. — In tliis caso, as in Munioy «in(l 
 Mai'klaiul, (It'cidc'l this term, ii[)(>n Appeal from tl»e same Boun- 
 dary Line Coiniuissioners, we do not tind in the Award of the 
 Commissioners any statement of the facts or principles on which 
 they found their decision ; we are left (o gather it as we can from 
 the return which th(!y have made of the evidence. This case, 
 thouii'h it hrini>s unch^r our re\ i(^w most of llu; same facts reo-ardinji 
 the Survey of the Township of Kingston, wiiich it was necessary 
 to consider in the other Ap|)eal already referred to, does not depend 
 on the same considerations for its decision. In the one case, we 
 were asked to determine the direction of a Side Line which, it is 
 (juite clear upon the testimonv, was not intended, according to the 
 Plan of Survey, to run parallel to the Townshi[) Boundary npon 
 that side of the Township from whence tlie Lots are numbered. 
 In this case, the original Plan of Survey, the Quebec Plan, Mr. 
 Aitken's Plan, and the Patent itself, all show that the Division 
 Line between L(»ts 24 and 25 is to be governed by the direction 
 of that Township Boundary. The Patent issued 27th June, 1796, 
 to the Rev. John Stuart, for this Lot 24, and describes it thus — 
 "Beginning at the S<>'i*h East Angh^ of Lot 23 on Lake Ontario, 
 then North to the Second Con<-essioii, 105 Chains, more or less, 
 then East 19 Chains, then South to Lake Ontario, 105 Chains, 
 more or less, thence West along the Bank of the Lake, 19 Chains, 
 to the pla(!e of beginning, containing 200 acres." The Western 
 Boundary of the Township of Kingston being that from which the 
 Lots in each Concession are numbered, runs North and South, ac- 
 cording to the Plan and Report of Survey by Deputy Surveyor 
 General Collins, and the Quebec Plan remaining of record in the 
 Surveyor General's Ollice, and the Patent beibro us is founded 
 npon that Plan of Survey, wo see nothing which authorizes us to 
 say that the (^rown, when this Grant was made in 179G, had not 
 full power to grant llu^ tract of Land called Lot 24, bounded an 
 the Patent describes, and being of this opinion, we cannot hold 
 that any subsecpient act of the Executive Government can, of it- 
 self, have had the ellecl of resuming the land so granted, or of ve«t^ 
 ing it in others. Tlu; Legislature un(lou1)tedly could have made, 
 and may make, a clianu'e in th(^ I^oundarv, upon those; considera- 
 tions of public inlerest am! c(»nvenien<e which somelim(\s Ir'ad to 
 such enactments, and ha\ ing (as no doubt they would have,) in 
 view the necessity of ha\ ing a just reuiitd to the vested rights of 
 individuals. There has be(^n no such interposition in this case, 
 however, and the bar' (jiic^tion, what cDustilules llie Eastern Limit 
 
it is 
 
 APPENDIX. 
 
 VIII 
 
 of Lot 24 in the Ist Conccs.sioii of Kingston, wliicli is all tliat wo 
 are called upon to (Ictciinini!, ({('[x'liils iqxjn the Original Plan of 
 Survey, the Patent, and the general J. aw of the Land. As re- 
 gards the last consideration, the Statiito Law is e\j)ress; tlie.50lh 
 Geo. 3d, ch. M, s(!c. 5, enacts, " that ihc Boundary Line of each 
 and every Townshi]) on that side from which the Lots are num- 
 hered, shall he, and the same is hcreity declared to be, the c(uirse 
 or courses of the res[)ecti\(! l)i\ision or Side liines througliout the 
 several Townshijis and Concessions of this Proviiice respect ively, 
 and all Surveyors shall, antl are hereby recpiired to rim all Divi- 
 sion or Side Lines, wliich they may be called u|)on, by the owner 
 or owners of any lands, to siit\ cy, (o correspond with and be pa- 
 rallel to the res|)ective Town Lines fr«)m whence the Lots are 
 numbered aforesaid." The succeeding clause points <»ut how the 
 Survey shall be made so as (o ensure that all Side Lines in the 
 Concession shall he run conformably to this standard. 
 
 We have bad occasion to (h'termine in oilier cases that this gen- 
 eral provision can only be held to be applicable to those cases in 
 which (as is usual) the Original Plan of Survey was intended to 
 make the Side Lines range uniformly, not where the evident de- 
 sign was to make any particular purl of tbe Township an excep- 
 tion to tbe general Rule of Sur\ ey. In this respect as regards Lot 
 24, we have seen nothing that would warrant us in saying that tiie 
 Side Lines of this Lot 24 were not intended to be run parallel 
 with the course of tlie other Side Lines in tbe same Concession, 
 as the Patent assures the Crantee that they shall be. If it were 
 supposed that the fn-st Act for the ap})oinimenl of Boundary Line 
 Commissioners gave to them a discretion so ^vide as to sanction 
 their departure from this rule, laid down as a fundamental princi- 
 ple by 59tb Geo. 3d, ch. 14, tbe Legislature soon made sucb a 
 supplementary enactment as must restrain them from so construing 
 their authority. The 3d Vic. ch. 11, inaposes up(m the Commis- 
 sioners the necessity of governing tbemsehes by tlie general Stat- 
 ute Law in regard to tbe course of Division or Side Lines, and 
 this Court has determined, in more than one case, that independ- 
 ently of this restriction, they were bound to observe tbe principle 
 laid down in 59th Geo. Sd. V[)on what authority tbe Commis- 
 sioners may lune thought Ihey could establish a Side Line for Lot 
 24, departing from tbe Plan of Survey, the Patent, and the Stat- 
 ute, is not explained in their dt^crec. They have made it pursue 
 a devious course, in order to acc(»mniodate its(dt to stret-ts, and to 
 other tracts and blocks, which have been all defined and laid out 
 
 i 1 
 
IX 
 
 APPENDIX. 
 
 after tlio onuitoo of Lot 31 receivod liis Patent. We lliink this 
 was Iteyoiid their power, and therc^fore our judgment is wiven for 
 antnillinjif their decree. We can estahlish no otlier Boundary for 
 the Eastern Side of Lot 24, than one which shall run parallel to 
 the Townshii) Boundary, at that end of the Concession from which 
 the Lots are numhered. In reference to this decision, it must he 
 understood that the ellect of our Judgment can have no intluence 
 U|)on the questions that may he raised upon the rights which any 
 parties may have acquired hy length of possessitni, or, in fact, upon 
 any ground apart from the mere fact of what arc the Boundaries 
 of the Lots which have hcen granted by the Crown as Lots 24 and 
 25. In this case, moreover, we could not pretend, by tiie exercise 
 of any discretion, to lay down a New Line, which should vary 
 from the course of the Township Line, for the Statutes are as bin(l- 
 ing upon us as u])on the Commissioners. 
 
 The case may be one very pro])er for Legislative interference, 
 in consequence of what has been done, whether regularly or irre- 
 gularly, by the Executive Government, since the Original Survey, 
 and there may be questions arising out of the acts and omissions 
 of parties, which may call for the decisions of Courts and Juries 
 acting upon other grounds and principles than those which come 
 w^ithin the scope of the Boundary Line Commissioners. 
 
 We can only give a decision upon the question of Boundary, 
 which may or mav not be decisive of the riuhts of individuals 
 within these Boundaries, according to circumstances, with which, 
 on this occasion, we have nothing to do. The parties interested 
 in these rights will know the means of supporting them. 
 
 We conlinc ourselves to determining that the Decree is not sus- 
 tainable, because contrary to law, and we abstain from altering 
 that Decree according to our opinion of what is the true Boundarv, 
 because it is quite obvious from the documents which ha\ j been 
 placed before us, that the case is one that may call for Legislative 
 interposition, and any unnecessary order of this Court in the mean 
 time might throw diUlculties in the way of an amicable arrange- 
 ment. Besides if the parties are resolved to insist upon their legal 
 rights, we look upon this as a case where the ends of justice would 
 be better answ^ered by a regular trial in a Court of Justice, than 
 by a summary Decree from which there would be no appeal.-— 
 Decree Reversed. 
 
APPENDIX. 
 
 lA'^nl Opinion 
 
 Rcsintliiii; Lot No. :'l, loiiiidcd on llip I'atciit and StiUutc Law of the Pro- 
 
 vini'i', or Law of the Laud. 
 
 Mkvtor is iiwnn; and fully sensiMo tliaf the lin[)crial Statute 
 21st ,lain(>s ls(, or Law ot Eugland, as intnuUu-ed into this Pro- 
 ving hy the Statute or Law ot the Land the 32d of Georf^e 3d, 
 1702, rhap. ls(, rhiuse 3d, and th(i pra<;tiec and decision of the 
 Courts reiriihiled hy the provisions of the 4th of William 4th, a 
 Statute or J.aw of the [.and, are the Basis and Rule of Decision 
 in the Coinis of Justice and Law in all cases of disputed rights of 
 pro|)erty and possession of Land hetween the grantors and grantees 
 of Deeds, hut with the exception of the Patentees of the Crown, 
 and Ukirs ok the Patentees; for the protection of whose Pa- 
 tents and tnn; Lines of Survey in accordance with the Boundaries 
 e\|)ressed in the Patents, the Legislature of the Province alforded 
 relief in the enactment of (he Statutes, or Laws of the Land, the 
 38th of George 3(1, 1798, the 50th of George 3d, 1818, and the 
 1st of Victoria, 1837, 1838. These Statutes and Law of the 
 Province are at the present lime (with the exception of 1st of 
 Victoria, 1837, 1838,) in full force and virtue, not having been 
 repealed hy any suhse(|iienl Statute or Statutes, and thereby have 
 l>ecome the legal Hide of Decisicm in the Courts of Justice and 
 Law in cases hetwcM'n the i'atentees of the Crown and Heirs oft 
 the Patentees, and others. 
 
 Moreover with resjjcct to (he recovery of possession of Land 
 held hy j)ersons through erroneous and defective Lines of Survey, 
 under the plea and title of Adverse Possession, the Statute of the 
 Province, or Law of' the Land, the 1st of Victoria, 1837, 1838, 
 artorded relief to the Patentees of the Crown and Heirs of the Pa- 
 tentees, and excluded the Occupants from possession by the provi- 
 r^lons of the above Statute, (»r Law, from holding under usurped 
 and illegal occupancy. By this Statute or Law a Court of Com- 
 mission was constituted under the title of Boundary Line Com- 
 niissioners, who have heard and decided cases of litigation and 
 dispute with an integrity and imj)artiality creditable to them, and 
 have j)ut into elfcct the j)rovisions of the aforesaid Statute and Law 
 the 1st of Victoria, 1837, 1838, to the e\clusi(»n and expulsion of 
 the holders of ilh^gal possession and usur|)ed occupancy. 
 
 In the numerous cases of litioation and dispu(e (hatare not 'n- 
 cluded in (he class of Paientees of the Crown and Heirs of the 
 Patentees, being (he claims and righ(s ofj^rantors and orantees not 
 
 J 
 
XT 
 
 APPKNIMX. 
 
 1^ 
 
 ot the Crown, and (lisirnhnils; tlicir Suits arc Iionnl and .locidcd 
 in tho Comis of Law anil .Justico on llic liasis or Rule of Drcision 
 the 21st ol .James 1st, an Imperial SlaUKe, ami tlic 4{h oC William 
 4th 1834; the Law applied to this dislinelive elass of Suitors, 
 ami governed hy the circumslani cs (,r (||,> case in the < onlraet he- 
 tween liie grantors and grantees heing not of the Crown. Not so 
 however, in the cases of dispule and litigation between the Pa- 
 tentees of the Crown and Heirs of the Patentees, and the Occu- 
 pants by usurped possession, ^\hoso rights are secured to the for- 
 mer by the Law of the Laml the 38th ofCeor<>-e 3d, 1798 the 59th 
 of George 3d, 1818, and the 1st of Victoria, "l 837, 1838.' 
 
 And in further support of this legal opinion it is to be remarked, 
 that in the provisions of the afore-cited Statute or Law, the 1st of 
 Victoria, 1837, 1838, tliere is no restriction or limitation clause 
 whereby it is enjoined upon the ]>a(entees of the (,'rown or Heirs 
 oj the Patentees, to bring their Suits within the limited p(M-iod ,)f 
 Twenty Years an.l in the event of their inabili.v or n(«glcct to do 
 so, the holder by the plea, claim, or title of A(iverse Possession 
 or usurped occupancy, isenahled to maintain a rioht to the Land, 
 and to exclude the Patentee of the Crown, or Heir of the Patenl 
 tee, Irom jtossession. 
 
 And with reference to tlie Statute, or Law, the 4th of William 
 4th, It is to be remarked, tliat the limitation clause inserted in it 
 respecting Suits or Actions at Law between litigants, -ivino- a re- 
 trospective application and en'(>ct to the Law ; the same does not 
 a{)ply to the cases of litigation between Patentees of the Crown or 
 Heirs of the Patentees, nor are these cases embraced within tho 
 cognizance and authority of tho aforesaid Statute or Law of the 
 Land, the 4th of William 4th, 1834. The aforesaid Law or Stat- 
 ute under Its title, and within its provisions, includes and embrac- 
 es the numerous cases and distinct class of grantors and orantees 
 and its operation is confined to the above class of Suitors in the 
 Courts of Justice and Law. I^he Patentees of the Crown and 
 Heirs of tho Patentees have their rights secured to them bv their 
 Patents, and by the Laws of the Province enacted for tlieir pro- 
 tec^tion, the 38th of George 3d, tlie 59th of George 3d, and the 1st 
 of Victoria, 1837, 1838. Tiiese Statutes of the Province, or Law 
 ofthe Land, are not repealed by any sul)se(|uent Statute or Stat- 
 utes of the Province, and they continue in full force and virtue 
 for the government of the Courts of Justice and Law. 
 
 MENTOR. 
 
 s 
 
vs. 
 BROWN. 
 
 r 
 
 I 
 
 APPENDIX. xn 
 
 Decision of f lio Court 
 
 On Appeal of Sliinrt vs. Ijrowii, in liivor iiml support of. Idvcrsc Possession. 
 DEODEM, STUART, ] Ejectmknt for Lots 5, G, 7, 8, 9, 
 
 IN PiCVRVILLK, IN THE MiDLAND 
 J)lSTRICT, CLAIMED UY PlAINTIFF 
 TO BE PART OF I.OT 2 1 IN IsT CoN. 
 
 OF THE Township of Kingston. 
 
 Pf.AiNTiFF i)r()(lii(C(l Palont IVom (lio Cn)\vn io the Reverend 
 John Stunri, 22(1 June, 179G, for Lot 24 Lst Concession of King- 
 ston, and It \vas achniited that Lessor of Plaintill" is Heir to the 
 Reverend Joiin Stuart. 
 
 It was proved that tiie jirenriiscs in question do really form part 
 of Lot 24, according to a Survey maile agreeahly to the Statute 
 59th Ceorge 3d. 
 
 On tlie other hand it wns proved that neither the Lessor of the 
 Plaintili; nor his ancestor, nor any person chiiming under eitlier, 
 has ever hecn in i)ossession of any ])art of tlie premises claimed, 
 but tluit from an early j)(>riod thev were supposed to form part of 
 the adjoining Lot, owned hy a Mrs. Magdalen Ferguson, and from 
 1816 to the present lime, if not from an earlier period, they have 
 been constantly in tlie ])ossession of persons who lune built upon 
 them, and occupied them, not under any claim derived from the 
 wner of Lot 24, nor upon any privity with tlu^ Lessor of thePlain- 
 liff, or his ancestor, but under a title derived from or throu<>h Mrs. 
 Magdalen Ferguson. ° 
 
 It was prov(>d further (hat the Lessor of the PlainlitT first gave 
 intimation of claiming this Land as part of 24 in the year 1823 
 and that so lately as Ajiril, 1841, the Lessor of tlie Plaintitr exe- 
 cuted a Conveyance, as Executor of another jjcrson, in which the 
 itract called Picarville is distincllv recognized as part of Mn<»-dalen 
 Ferguson's Lot called Lot A. ' ° 
 
 The Jury, under the direction of the learned Judge, found a 
 verdict for the Defendant. This verdict has been moved against 
 on the ground that the Lessor of the Plaintill' is not bound by the 
 length of possession set up as Adverse under the circumstances of 
 Ihis case. We should have disj)()se<l of the Rule earlier, but we 
 have been requested, on the i)art of the Lessor of the Plaintill", to 
 postpone the Argument from lime to time in order that he might 
 procure and submit to us a Report of the decision of a case in a 
 €ourt of very high authority in the State of New York, which in- 
 volved the defence of possession under circumstances similar to 
 the present. The case alluded to is that of Adams vs. Rockwell, 
 reportctl in 16 Wendall's Reports, 285. It is one in which the 
 
XIII 
 
 APPENDIX. 
 
 \' 
 
 parlies had ics|MMlivcly o(cii|iiL'«| lor a luiiu; |)crin(|, a< ronlinj; in 
 ail frroiicoiis liotmdarv Liiif, hclirx iiiu, il ((the corrrrl ; aiul 
 \vli(!llM'r siirh an (U(ii|ialioii held, not in ddiancr o( llic oiIhm'n 
 right, hill ill conscijiicMci' (it a CDninion rrmr, cnidd he «onsid<Mt'd 
 to ronslitnlo an Adverse INissession, which, alter twentv VJ-ars, 
 woidd ripen into a liih- iniih-r ihc; Slatute <>( Jjniitalions,' was ihe 
 point discussed. This is in ilscM" an interest int;- (pKjstion — not 
 new in this [*r«)\ ince, where we have formerly had occasion to 
 <-(»nsider it in nion' than one « as(! ; and it is a (|iiesli(in which nnisl 
 iioe.ossarily he nnich airecltid hy the conchict of the parlies, and hv 
 VHri»)U» circumstances which may pr(»perlv enter into c(uisidera- 
 tion. Rut (»ur hile Statute tth VVilliam llh, ('hap. I, has narrow- 
 rd the held I'm- discussion in a case like this helore us. W we 
 wore now left to di.>p()se of this ( ase upon (he old Statute of |jin- 
 itations, isJIst .lames 1st, then w<' should ha\(' to consichM- the doc- 
 trine of Advrrs(! J*ossession upon which the (dahorat«» American 
 decision referred to would no douht throw some additioiud lijihl ; 
 but our hite Statut(% like the recent Statute in Kni;land, upon 
 which it was framed, has put an end to tiies<» considerations, as wo 
 have slated in the case of Deodem Marsh vs. Yoim<!;, latelv (U'ter- 
 mined in this Coint, nnd tlioui;h that Statute mav, in some cases, 
 operate hardly, yet in this case it will appear, 1 think, upon con- 
 sideration, to operate justly and heneticially. It is sutlicient, as 
 the law now stands under ihis Statute, to state that the Defendant 
 hfis been in actual, visible possession of tin se premises since 181(), 
 not claiming under the Lessor of the J'laintill, or his ancestor, hut 
 under a title distinct from his ; that durini; that period he has paid 
 no rent to the Lessor of the I^laintilf, nor acknowledoed in writing 
 that he held under him. And more than live years of this time 
 has elapsed since the Statute referred to came into operation. If 
 this action had been brought within those fi\(' vears, then we nuist 
 have <-«»nsidered this «|uestion without prejudic*- from the Statute 
 4th William llh. The point, then, woidd have been, wluMlior 
 the possession of the Defendant oiiniil, upon the e\ idence, to be 
 regarded as an Adverse Possession upon wlii<"li the Statute* of Li- 
 mitations would run or not. J3ut the I'laintill" has allowed tlu^ live 
 years reserved by the 27lh Section of the Act ti> pass before he 
 brought this A<tion, and we can now onU sav that as neitiier the 
 ]j<;ssor of the PlainlilV, nor Jiis ancestor, ha\«'been in possession 
 for more than twenty years, nor been in the receipt of the rents 
 and profits, there being at the same time possession in another, who 
 has not ackno\N ledged their title in writint>;, tliis Action must ne- 
 cessarily fail ; the right to bring it being expressly taken away by 
 otir Slatute Itb Wm, Ith Chap. 1, Sec, 16. — Postia to L)eft. 
 
COMMUNICATIONS, 
 
 PUBLISHED IN THE KINGSTON HERALD; 
 
 SUPPLEMENTARY TO MENTORIANA. 
 
COMMUNICATIONS, &c. 
 
 Mr. Editor ; 
 
 A Subscriber was much gratified in perusing a summary 
 of a Law Case, Murney versus Miller, communicated through 
 the medium of your paper of the 3rd of October, 1843, embra- 
 cmg a discussion of the Eastern Boundary and Line of Survey 
 of the Township of Kingston, limiting the Town of Kingston, 
 and constituting also the Eastern Boundary and Side Line of 
 Survey of half of entire Lot No. 25, in the fir.'-t Concession of 
 the said Township, and containing one hund"ed acres of land. 
 
 In the case alluded to, it is worthy of remark, for the 
 information of the public, and to be ascertained by this com- 
 munication, that the original Boundary and Line of Survey of 
 the Township of Kingston, and of entire lot No. 25, embracing 
 two hundred acres of land, was run by Deputy Surveyor 
 General Collins, in the year 1783, was recognized and known 
 to be of that character from the year 1783 to 1794 or 1797. 
 
 The boundary and diagonal line rf Survey run by Deputy 
 Surveyor Tuffy, in 1785 or 1787, arising from and founded 
 on the contract of Captain Grass with the Government, and his 
 relinquishment of the original Boundary and Eastern Side 
 Line of entire Lot No. 25, is erroneous and defective, dividing 
 the same into two unequal parts. 
 
 The Bondary, and diagonal line of Survey, dividing entire 
 Lot 25 into two equal parts, and embracing one hundred acres 
 of land, and iccognizcd upon the Government map, and run 
 out by Deputy Surveyor Aitken, between the years 1794 and 
 1797, is the true Eastern Boundary and Side Line of half Lot 
 

 li( ! 
 
 4 ' Communications, &c. 
 
 No. 25, in the first Concession of Kingston. It became also 
 the Eastern unalterable Boundary Line of the Township of 
 Kingston, Hmiting the Town, and is confirmed by the Statute 
 of the Province, or Law of the Land, the 38th of George 
 Third, 1798. > , 
 
 The reason of the change, founded on the facts in the 
 History of Surveying, publislu;d in Mentoriana between pages 
 28 and 31, and between pages 31 and 40, in the third part of 
 said pubhcation, is obvious, and the reasoning conclusive. 
 
 The Diagonal Line of Survey, from the change and sett- 
 ing aside of the Boundary Side Line of entire Lot No. 25, and 
 of the original Boundary Line and Eastern limit of the Town- 
 ship of Kingston, run by Deputy Surveyor General Collins, in 
 the year 1783, assumed a double character. The Diagonal 
 Line of Survey became the Eastern Side Line and limit of 
 half Lot No. 25, in the first Concession of the Township of 
 Kingston; constituting also the Eastern Boundary Line of the 
 Township of Kingston, limiting the Town ; and to the exclu- 
 sion of Deputy Surveyor General Collins' original Eastern 
 Boundary Line of the Township of Kingston ; and also to the 
 setting aside of Tuffy's erroneous and defective line of Survey, 
 supposed by many and taken to be the Boundary Eastern Side 
 Line of the Township, limiting the Town, and of half Lot No. 
 25, in the first Concession of said Township. 
 
 In a few words, the Boundary Line run out by Deputy 
 Surveyor General Collins, in the year 1783, was the true limit 
 and Eastern Boundary Side Line of entire Lot No. 25 ; and 
 it also constituted the true Eastern Boundary Lineof Seignory, 
 No. 1, afterwards the Township of Kingston, limiting the 
 Common Cataratjui afterwards the Town of Kingston, from 
 the year 1783 to 1704, or 1797. 
 
 
Supplementary to Metitoaiana. 
 
 5 
 
 The Boundary Line of Survey of half Lot No. 25, run by 
 Tuffy, Deputy Surveyor, in 1785 or 1787, is the erroneous and 
 defective Eastern Side Line of said half Lot, in the first Con- 
 cession of Seignory No. 1, or Township of Kingston; and it 
 also became the erroneous and defective Eastern Boundary 
 Line of the said Seignory No. 1, or Township of Kingston, 
 limiting the Town of Kingston. Conclusively, therefore, from 
 the foregoing premises, the Diagonal Line of Survey run out 
 by Deputy Surveyor Aitken, between the year 1794 and 1797. 
 is the true Boundary Line, or Eastern Side Line and Umit of 
 half Lot No. 25, containing one hundred acres of land, ex- 
 pressed in the Government Patent, and confirmed by the Sta- 
 tute 59th of George Third, 1818; and also the inference or con- 
 clusion is just that the said Diagonal Boundary Line is like- 
 wise (embracing the angular extension) the true unalterable 
 Eastern Boundary Line of the Township of Kingston, limiting 
 the Town, and confirmed by the Statute 38th of George Third, 
 1798 ; and there is none other. 
 
 The foregoing statement of facts, embraced in the Histo- 
 ry of Surveying from the year 1783, and which also have 
 been published, supported by documents and authorities in 
 Mentoriana, it is expected will enable and induce the owner 
 of half Lot No. 25 to establish the true Boundaries of the said 
 Lot; and by perseverance in prosecuting his rights, ultimately 
 to obtain his vested rights and just quantity of Land, secured 
 to him by his Patent, and confirmed by the Statute Law of 
 the land. 
 
 A SUBSCRIBER. 
 
 Kingston, Oct. 10th, 1843. 
 
6 
 
 Communication^?, 6ic. 
 
 Mr. Editor : 
 
 Having perused the communications of Mentor, on the 
 subject of Boundary Lines, which, by virtue of the Statute, 
 or Law of the Land, 1st Victoria, 1837, 1838, and under the 
 authority and decision of the late Commissioners, secured to 
 the Patentees of the Crown, and tlieir heirs, the possession of 
 their just quantity of land, to the rejection of the plea, claim, 
 or title of occupants, founded on adverse possession, or more 
 truly and properly, usurped occupancy : I have much pleasure 
 in submitting to the consideration, and for the information of 
 the public, some remarks in elucidation and application of the 
 Statute Law of the Land, 4th of William Fourth, 1834 ; being 
 that which is assumed by its advocates a. ' supporters as the 
 Law of decision in support of the plea, claim, or title of ad- 
 verse possession, to the subversion and rejection of Patented 
 rio-hts, and in repugnance and violation of the Statutes of the 
 Province or Law of the Land, 38th of George Third, 1798 ; 
 59th of George Third, 1818, and 1st of Victoria, 1837, 1838. 
 
 In accordance with, and in support of the legal opinion 
 of Mentor, the Statute, or Law of the Land, 4th of William 
 Fourth, 1834, is submitted to the public, accompanied by suit- 
 able remarks, illustrating its true character, and confining the 
 application of its provisions to the cases of litigation that 
 come within its cognizance and bearing ; but with the excep- 
 tion of the Patentees of the Crown, and their heirs, whose 
 rights are secured 1 ■ them by 1st of Victoria, 1837 and 1838, 
 the Law of the Lan.^. 
 
 The title of the Law is thus expressed, " An Act to amend 
 « the Law respecting Real Property, and to render the pro- 
 " ceedinc^s for recovering possession thereof, in certain cases, 
 " less difficult and expensive." This title is clearly explained 
 and defined in the Preamble, expressing or naming the certain 
 
 ' 
 
Supplementary to Mentoriana. 7 
 
 cases which come under its cognizance, and within its hear- 
 ing ; but at the same time not embracing — but excepting and 
 icjecting — the cases of the Patentees of tiie Crown, or their 
 heirs. * 
 
 PREAMBLE: 
 " Whereas it is expedient to amend the Law relating to Real 
 " Estate, by making certain alterations in the Law oi' Inherit- 
 " ance, and respecting the conveyance of Real Property by 
 " Devize, and by Deed, and in regard to Dower, and the limit- 
 " ation oi Actions and Suits relating to Real Property, and for 
 " simplifying Cue remedies for trying the rights thereto." 
 
 The twelve first clauses succeeding to the Preamble, have 
 relation to the rights of Devizees by Will and by Deed under 
 Purchase, and do not comprehend or embrace the cases of 
 Patentees of the Crown, and their heirs, whose rights are se- 
 cured to them by the decision and judgment of the Boundary 
 Line Commissioners, and possession obtained of these rights 
 by virtue and under the provisions of the 1st of Victoria, 1837, 
 1838, the Law of the l^and, in which there is no limitation 
 clause in support of the claim or title of adverse possession. 
 
 The next and following four clauses of the 4th of William 
 Fourth, 1834, embrace the provisions relative to the right of 
 Dower, and have no connexion with, or bearing on the rights 
 of the Patentees of the Crown, and their heirs, in the question 
 of right against usurped occupancy or adverse possession. 
 
 Then follows the seventeenth clause of the aforesaid Sta- 
 tute of the 4th of William Fourth, 1834, enabling the occupants 
 of Land, in certain cases, in possession for twenty years and 
 upwards, by Deed on purchase, to hold and enjoy under the title 
 of adverse possession, or more truly and properly, usurped occu- 
 pancy. And iliQ limitation is in full force and virtue in certaiii 
 
s 
 
 Communications, <kc. 
 
 a: <i 
 
 I ^ 
 
 ' 
 
 cases, namely, Devizees by Will, and by Deed founded on pur- 
 chase, but with the exception of the Patentees of the Crown and 
 their heirs, to whom no knowledge did or could have accrued 
 of the occupants being in possession of Land adverse to the Pa- 
 tentees of the Crown, or their heirs, until after the enactment 
 and operation ol the Law of the Land, 1st of Victoria, 1837, 
 1838, at and from which period the title of adverse possession 
 did and should be deemed to have accrued or commenced, 
 and only in the certain cases which the limitation clause of 
 prescription embraced. 
 
 The remaining clauses of the 4th of William Fourth, 1834, 
 in number forty-three, afford remedies in the various and nu- 
 merous cases affecting the rights of Devizees, and Purchasers 
 by Deed, and have no relation to or bearing upon cases of the 
 Patentees of the Crown, or their heirs, whose rights are se- 
 cured to them by the Law of the Land, 38th of George Third ; 
 59th of George Third, and the 1st Victoria, 1837, 1838; re- 
 cognizing and confirming the rights expressed in the Patents 
 from the Ci'own. 
 
 From the foregoing remarks on the title, preamble, and 
 subsequent provisions of the Statute 4th of William Fourth, 
 1834, it is obvious that the question of the rights of the Paten- 
 tees of the Crown, or their heirs, against occupants by adverse 
 possession, or more truly, usurped occupancy, is to be decided 
 upon the basis of the Laws that have been enacted, 38th of 
 George Third, 1798 ; 59th of George Third, and 1st Victoria, 
 1837, 1838. And it is further obvious, that while the clause of the 
 limitation of actions and suits, to twenty years, and upwards, 
 in favour and support of the title of adverse possession, or 
 usurped occupancy, operates against, and to the exclusion of, 
 the rights of Devizees by Will, and Deed on purchase, the 
 Patentees of the Crown, and their heirs, are not included with 
 
Supplementary to Mentoriana. 
 
 9 
 
 them by a coilstructive interpretation of the seventeenth clause 
 of the 4th of William Fourth, 1834 ; on the contrary, there is 
 a proviso in said clause which has a reference to the case of 
 Patentees and their heirs, who are not included or embraced 
 within the operation of the limition clause of the 4th of William 
 Fourlh, 1834, but are excepted from coming under its cogni- 
 zance and bearing. 
 
 The exclusion and exception of the Patentees of the 
 Crown and their heirs, are expressed in the following terms 
 or words of the aforesaid Statute : 
 
 *' Provided always, that until the person deriving title to 
 " land in this Province as the Grantee of the Crown, or his 
 " heirs or assigns, or some or one of them, by themselves, their 
 " servants or agents, shall have taken actual possession of the 
 " land granted, by residing thereupon, or by cultivating some 
 " portion thereof, the lapse of twenty years shall not bar the 
 " right of such Grantee, or any person claiming by, under or 
 ** through him, to bring an action for the recovery of such land, 
 " unless it can be shown that such Grantee, or person claiming 
 " by, under or through him, while entitled to the land, had know- 
 " ledge of the same being in the actual possession of some other 
 " person, not claiming to hold by, from or under, the Grantee of 
 " the Crown, (such possession having been taken while the said 
 " lot was in a state of nature,) in which case the right to bring 
 *• such action shall be deemed to have accrued from the time 
 " that such knowledge was obtained." 
 
 The inferences from the above and foregoing explanation 
 of the limitation clause of the 4th of William Fourth, 1834, 
 in certain cases, with the exception of the Patentees of the 
 Crown, and their heirs, are obvious, and accord with the fol- 
 lowing legal opinion : — " That with reference to the Statute or 
 « Law, 4th of William Fourth, 1834, it is to be remarked, that 
 
 \ 
 
10 
 
 CoMMUNICATIONa, &C. 
 
 m. •! 
 
 n\'\ 
 
 
 ih'? 
 
 
 " the limitation clause, in the said Statute or Law, respecting 
 " actions and suits at Law between litigants, having a retrospec- 
 " tive application before the existence 4th of William Fourth, 
 " 1834, does not apply to the cases of litigation between the 
 " Patentees of the (Jrown and their heirs, and the holders of the 
 " land by and under the title of adverse possession, or more 
 " truly and p^^opcrly, usurped occupancy. Nor are these cases 
 " embraced within the cognizance or bearing of the Statute 
 " Law, 4th of William Fourth, 1834. The said Statute or 
 " Law, under its title and preamble, and within its provisions, 
 " embraces the numerous cases known by the name of Devi- 
 " zees by Will and by Deed on purchase, and its operation is 
 " confined to the above class of suitors in the Courts of Justice 
 " and Law. The Patentees of the Crown and their heirs have 
 " their rights secured to them by their Patents and the Laws 
 " of the Province, enacted for their protection, 38tli of George 
 " Third, 1798 ; 59th of George Third, 1818. and 1st of Victoria, 
 *' 1837, 1838, which having no limitation clause in their provi- 
 " sions, became the rule and dicision in the Courts of Law and 
 •' Justice." 
 
 The attention of the j)ublic is requested to the foregoing 
 
 communication, which will be succeeded by a legal opinion 
 
 on the explanation and application of the Statutes, or Law of 
 
 the Land, 38th of George Third; 59th of George Third, 1818, 
 
 and 1st of Victoria, 1837, 1838, which establish the Boundary 
 
 Lines on a true and permanent basis, and secure and confirm 
 
 the rights of land to the Loyalists, the Patentees of the Crown 
 
 and their heirs. 
 
 A SUBSCRIBER. 
 Kingston, Decemher 26th, 1843. 
 
 
Supplementary to Mentoriana, 
 
 U 
 
 Mr. Editor : 
 
 Having in a preceding communication submitted a legal 
 opinion to the public, to the oftcct that the Statute of the Pro- 
 vince, or Law of the Land, the 4th of William Fourth, 1834, 
 from its title, and in its preamble and provisions, is not the rule 
 and law for decision and judgment in the Courts of Justice 
 and Law, in the cases of Patentees of the Crown and their 
 heirs, and within whose cognizance and authority they are not 
 included and embraced, but that the aforesaid Statute is limited 
 to certain cases as expressed therein ; the Devizees by Will and 
 by Deed on purchase, and Grantees not of the Crown, and has 
 no bearing on the cases of the Patentees of the Crown and their 
 heirs, by a constructive interpretation of its clauses, contrary to 
 the letter and intention of the title and preamble. 
 
 A Subscriber, in the following communication, has much 
 pleasure in calling and inviting the attention of the public to a 
 consideration and knowledge of the bearing and effect of the 
 Statutes of the Province, or Law of the Land, 38th of George 
 Third, 1798 ; 59th of George Third, 1818, and the 1st of Vic- 
 toria, 1837, 1838; which declare and establish chc true Boun- 
 daries or monuments, and lines of Survey running from them, 
 in contra-disti notion to the erroneous and defective ones, on a 
 permanent basis, and in accordance with the courses and dis- 
 tances expressed in the Patents ; thereby securing the rights 
 of land in its full and just quantity to the Loyalists and their 
 heirs, the Patentees of the Crown, against the holders by erro- 
 neous and defective lines of survey under the plea, claim or title, 
 of adverse possession, and more truly and properly, usurped 
 occupancy. 
 
 By a reference to a communication in "Mentoriana," be- 
 tween pages 50 and 56, in the fourth part of that publication, 
 the public are favoured with a legal opinion at large on this 
 question ; and it is also stated in a more abridged and concise 
 
12 
 
 Communications, &c. 
 
 form in the tenth and eleventh pages of tlie Appendix to that 
 pubHcation. For the purpose, and with the object in view of 
 satisfying public inquiry, and of determining and scttUng a 
 question interesting to individuals and to the country, which 
 even in the Courts of Justice and Law lias not been duly ap- 
 preciated, correctly understood, nor finally settled, the follow- 
 ing communication is submitted. 
 
 It s a fact, and matter of historical notoriety, that the first 
 and original Settlers of this Province held and occupied their 
 lands and estates from the year 1783 to 1792, and for several 
 succeeding years, on the faith of Government. Boundaries or 
 monuments were established, and lines of Survey were run 
 from them preparatory to the issuing of Patents by the Govern- 
 ment, and accompanied by an assurance and promise at the 
 time, that within the boundaries or monuments fixed, and by 
 a true and correct line of Survey from them, eachmnd every 
 Patent when granted would embrace within its extent and true 
 limits two hundred acres of land. 
 
 In the interim between the years 1792 and 1818, Patents 
 were granted by the Government, in accordance with the inten- 
 tion, assurance, and promise of Government, but at variance 
 with the lines of Survey, which from the attraction and varia- 
 tion of the magnetic needle did not agree with the courses and 
 distances expressed in the Patents. Hence commenced dis- 
 putes and contention, arising from erroneous and defective 
 lines of Survey, in contra-distinction to 'he true boundary lines 
 expressed in the Patents. Hence was the origin of the dis- 
 putes and contention between the holders of the lots of land 
 by an erroneous line of Survey, and the claimants, Patentees 
 or heirs of the Crown, by a true boundary line expressed in 
 their Patents. 
 
 ! 
 
 I 
 
 
I« 
 
 SiTPPLEMENTARY TO MeNTORIANA. 
 
 18 
 
 I 
 
 For the protection and relief of the litigants, who could 
 derive and receive no adjustment of their disputes from tho 
 Courts of Lqmt and Justice, application was made by both par- 
 ties at variance, the litigants, to the Provincial Parliament for 
 Legislative interference, and the settlement of their disputed 
 rights. By the authority of the Provincial Parliament, the 
 Statutes 38th of George Third, liyy^ the. 59th of Geo. Third, 
 
 ^JX^l*i8, and the 1st of Victoria, 1837, IsjS, ^^(<5^emctcd; and 
 ^ by the provisions of these Statutes the original Boundaries or 
 
 /^J? monuments, in the first Survey of the several Townships, were 
 recognized and established as immovable ; and likewise the 
 true Boundary Side Lines of each and every Lot and Lots of 
 Land in the several Townships of the Province were declared, 
 adjudged, and in cases of dispute, to be run by a parallel line of 
 Survey, conformably to the legal provisions of 38th of George 
 Third, l*»S7and^9th of Gmrge Third, >^i^7and in agreement 
 or accordjmcewrth^ifi^ourses and dist^^ explxj^SccTin the 
 Patents. 
 
 In addition to the aforesaid Statutes, or Law of the Land, 
 38th of George Third, l ^,and 5 Uth of G^rge Third, tOW, Z,?^^ 
 the Legislature of the Pro vi^i^'efiacJ^p^^c^Bta tute or Law of 
 
 I 
 
 the Land, the 1st of Victoria, 1837, 1838, authorising and cm- 
 powering the Commissioners of Boundary Lines to set aside 
 the erroneous and defective lines of Survey, and to run and 
 establish a true parallel line of Survey, to the 'ejection and re- 
 moval of the occupants holding under the plea, claim and title, 
 of adverse possession, or more truly and properly, usurped oc- 
 cupancy. The Statute of the Province, or Law of the Land, 
 the 1st of Victoria, 1837, 1838, contains and embraces witiiin 
 its provisions no clause recognizing occupancy for tw^cnty 
 years, by and under an erroneous Boundary Line of Survey, 
 as a title or legal right ; subversive of Patent-rights, and in re- 
 pugnance to, and in violation of, the Law of the Land. 
 
 /^/S 
 
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 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14S80 
 
 (716) 872-4503 
 
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 14 
 
 Communications, &c. 
 
 I ^ 
 
 The disinterested, and even the advocates and jsupporters 
 of adverse possession, free from the bias of pre-possession, pre- 
 judice and interest, must be aware that the basis on which the 
 title of adverse possession rests, the Imperial Statute and Com- 
 mon Law of England, is inapplicable to the circumstances of 
 the Country ; at variance with, and repugnant to, the Statutes 
 or Law of the Land, 38th of George Third, 1798 ; 59th of Geo. 
 Third, 1818, and the 1st ol^Vfetoifd, 1837, 1838; and more- 
 over, that the title derives no countenance and support from 
 the Statute, the 4th of William Fourth, 1834, erroneously ad- 
 vanced by its advocates and supporters as the Law and basis 
 of decision. If the foregoing plea should be maintained in the 
 Courts of Justice and Law, spoliation would be invested with 
 the character of right ; wrong and right would be confounded 
 together ; and oppression would become triumphant over right 
 and justice. 
 
 Should however the legal opinion of the advocates and 
 supporters of adverse possession, on the authority of the 4th of 
 Wm. Fourth, 1834, be entertained in the Courts of Justice and 
 Law, to the violation and surrender of the rights of the Paten- 
 tees, and heirs, of *the Crown, a reference of their cases must 
 be made to 'the Superior Court of Appellate Jurisdiction, and 
 if imperatively expedient, ultimately to the Legislature of the 
 Country. 
 
 In confirmation of the legal opinion expressed in the fore- 
 going communication, the Court of Boundary Line Commissi- 
 oners, in the year 1839, heard and adjudged a case of disputed 
 Bondaries f^^twcen the Venerable George Okill Stuart, Claim- 
 ant, and the Reverend William M. Herchmer, Respondent. 
 
 The parallel Line of Survey was run by Deputy Surveyor 
 William H. Kilbornc, conformably to the provisions of the 
 Statute of the Province, or Law of the Land, the imh of Geo. 
 
 5* 
 
 ^1 
 
 I 
 
fOta Supplementary to Mentoriana. 16 
 
 Third, W^ and was placed on a permanent and unalterable 
 basis, in contra-distinction to the erroneous and defective mag- 
 netic line of Survey, run between the years 1783 and 1795, by 
 Deputy Surveyor Kotte ; and also to the setting aside of the 
 astronomical line of Survey erroneously run by Deputy Sur- 
 veyor Rydar, in violation of the Statute of the Province, or 
 Law of the Land, ^^^j^JtffG^'gp Third, 1818, established in 
 the year 1821 by the'Court oT jjsng's Bench. 
 
 Moreover, in virtue of and conformably to the provisions 
 of the Statute of the Province, the 1st of Victoria, 1837, 1838, 
 possession was obtained from the Courts of Boundary Line 
 Commissioners to the removal of occupants, and to the setting 
 aside of the plea or title of adverse possession. Thus the Ven- 
 erable George Okill Stuart, the Patentee of the Crown, and 
 heir at Law, was protected and secured in the right and pos- 
 session of his just quantity of Land, with-held from him by the 
 Reverend William M. Herchmer, being two hundred acres of 
 Land within Lot No. 24, in the first Concession of the Town- 
 ship of Kingston, givei. in the year 1784 on the faith of Govern- 
 ment, granted in the Patent issued in the year 1796, and con- 
 firmed by the Statute Law of the Land, "Si^hof George Third, 
 1818, and the 1st of Victoria, 1837, 1838.^nTjif year 1840 
 a case of disputed line of Boundaries was heard and adjudged 
 by the Board of Boundary Line Commissioners between Geo. 
 Strachan, Claimant, versus George Baxter, and others, in the 
 Township of Pittsburg. The Boundaries were adjudged by 
 a parallel line of Survey, run by Deputy Surveyor Kilborne, 
 conformably to the provisions of the 5®th oLGeorge Third, 
 1818, and possession was obtained of his rignt^y the Claim- 
 ant, from the Court of Commissioners, under mo provisions of 
 the 1st of Victoria, 1837, 1838, to the rejection and removal 
 of the occupants holding under an erroneous and defective 
 
I' 
 
 16 
 
 Communications, &c. 
 
 line of Survey; and to the setting aside the plea, claim or title, 
 of adverse possession. 
 
 To these cases, a large number in this District might be 
 added, but it is unnecessary to add more to this communication ; 
 not omitting however to include in it, for the information of 
 the public, a legal decision or judgment of the Court of King's 
 Bench, in confirmation of the foregoing legal opinion, extracted 
 from a Digest of Cases determined in the Court Queen's 
 Bench, by John Hillyard Cameron, in the year 1840, and to 
 be found in page 17 ; and it is thus expressed :— 
 
 " Boundary."—" Twenty years possession according to a 
 " certain Boundary Line will bar an ejectment brought to dis- 
 "turb such Boundary, unless a new Survey can be made 
 " strictly in accordance with the provisions of 59th of George 
 " Third, 1818, Chap. 14th— Doe Morgan, vs. Simpson, Trin- 
 " ity, 1st & 2d Victoria." 
 
 A SUBSCRIBER. 
 Kingston, January 2nd 1844. 
 
 1 1 ■ I 
 
 WATSON, PRINTER — KINGSTON. 
 
, claim or titid, 
 
 strict might be 
 )mmunication ; 
 information of 
 !ourt of King's 
 [lion, extracted 
 ^ourt Queen's 
 r 1840, and to 
 
 ccording to a 
 )rought to dis- 
 can be made 
 9th of George 
 mpson. Trin- 
 
 SCRIBER. 
 
 Supplementary to Mentohiana. 
 
 17 
 
 Mr. Editor, 
 
 A Subscriber to your Paper derives much pleasure and satis- 
 faction from having perused the Report and Decision of the Court 
 of Law in the Case of Murney v Markland and others in Appeal. 
 The Report and Decision sets aside the erroneous Eastern Boundary 
 Line of the Township of Kingston, limiting the Town, adopted by 
 the Boundary Line Commissioners on the authority of a Line of 
 Survey, assumed and run by Deputy Surveyor Wilmot in the year 
 1818 or 1819, and also assumed and run by Deputy Surveyor Kil- 
 born in the year 1823, and establishes the true Eastern Boundary 
 Line of the Township of Kingston, limiting the Town, and run un- 
 der authority of the Executive of the Province of Quebec between 
 the years 1787 and 1794 by Deputy Surveyor General Collins or 
 Deputy Surveyor Kotte, known as the Diagonal Eastern Boundary 
 Line of the Township of Kingston, limiting the Town, re-traced 
 by Deputy Surveyor Aiken in the year 1797, recognized by the 
 Government Map of the Townsliip of Kingston and conlirmed and 
 established by the Statute Law of the Land the 59th of George 3d, 
 1798. ^ 
 
 The Report and Decision of the Court of Law in Appeal more- 
 over establishes and confirms the true Boundary Line of Survey 
 under the authority of the Executive of the Province of Quebec, to 
 the rejection of the erroneous Boundary Line of Survey, assumed by 
 Wilmot and Kilborn and adopted by the Boundary Line Commis- 
 sion- rs, and as beinsj in accordance witii the Diao-ram exliibited in 
 Mentoriana, and illustrated in the history of the facts connected with 
 the first and original Line of Survey of the Township of Kingston, 
 limiting the Town. 
 
 A Subscriber requests the publication of the legal Report and 
 Decision, in order that it may be added to the Communications Sup- 
 plementary to Mentoriana, and thereby may be submitted to the 
 reading and consideration of the Public, wlio are interested in this 
 legal Document and Decision of a question, whose merits have heen 
 investigated, discussed and ably vindicated by Mentor in the pages 
 of Mentoriana, on the basis of Patent Rights and the Statute Law of 
 the Province. The publication of the legal Report and Decision 
 is more specially intended for the perusal and information of Juries, 
 who thereby shall be enabled to decide all questions of Right and 
 Property under litigation in the Courts of Justice, and in the words 
 of Mentor in the Preface to Mentoriana, " will thereby become 
 
1 1 
 
 18 
 
 COMMUNICATIOMS, &C. 
 
 competent to co-operate with the Courts of Justice and Law, and 
 Professional Men in hearing and determining all cases submitted to 
 them, on the basis of Patent Rights and the Law of the Land, to the 
 rejection of adverse Possession or illegal and unjust occupancy." 
 
 A SUBSCRIBER. 
 Kingston, Oct. 5th, 1844. 
 
and 
 ed to 
 the 
 
 » 
 
 R. 
 
 LAW REPORT AND DECISION. 
 
 t v.-r 
 
 MURNE7 V NATIKLAND k OTHERS. 
 
 ROBINSON, C. J. 
 
 The Plans which have been laid before us shew that the determi- 
 nation of the question may be attended with very important conse- 
 quences to a number of individuals, and perhaps also to the public 
 interests, for in the progress of time the land in the vicinity of this 
 disputed boundary has become extremely valuable, and a great part 
 of what was unquestionably intended at one time to form part of 
 this Lot 25, has, under other designations, been granted by the 
 Crown, and has been made the subject of many transfers among in- 
 dividuals who have expended large sums of money in buildings and 
 improvements. It is to be regretted that a case of which the de- 
 cision must affect so many interests has not come before us in a more 
 precise and satisfactory shape. The Commissioners do not lay 
 plainly and fully before us the grounds of their judgment. If they 
 had stated what facts they looked upon as ascertained by their en- 
 quiries and upon what principles they had framed their conclusions, 
 upon those facts we could more easily and perhaps more clearly 
 have made up our opinions upon the correctness and reasonable- 
 ness of their Judgment. Then again, the Appellant has omitted to 
 do what on future occasions of this kind we must enforce, namely, 
 to state in writing his reasons of appeal, in which we ought to find 
 all the objections pointed out which have led him to question the 
 propriety of the decision ; and these reasons of appeal ou^ht to be 
 met in like manner by a written statement of the arguments in sup- 
 port of the decision. We should then see clearly to what points 
 our attention was required to be given, and should feel more confi- 
 dent that we were not overlooking any consideration which the 
 parties may regard as material. Taking up this question upon the 
 materials which the parties have placed before us, we must enquire, 
 1st, What are the facts upon which the Commissioners gave ilieir 
 Judgment ; — in otlier words, what has been done that can have a 
 bearing upon the establishment of this particular boundary. Tlio 
 next consideration will be what is tlie legal consequence of all tliat 
 
 K'' 
 
20 
 
 Law Report and Decision. 
 
 'i 
 
 I 
 
 we find to have been done. The first, as regards the facts. It ap- 
 pears from a legal document laid before us, certified by the late 
 Surveyor General of Lower Canada to be the copy of a map or plan 
 remaining among the records of the former Province of Quebec, 
 that in the year 1783, John Collins, Esq., then Surveyor General, 
 laid out the Township of Kingston, under instructions from the 
 Government, and returned a diagram and report of his survey, by 
 which it appears that he ran out the township lines in such a man- 
 ner that they comprised a rectangular tract six miles square, at each 
 angle of which he placed a stone monument. According to this 
 diagram the lot No. 25 in the first concession is the last lot in that 
 range or concession. It is of the same figure and complement as 
 the other lots in the township, and the Eastern boundary of the 
 township forms the Eastern side-line or limit of that lot. It is not 
 stated on the face of this plan what length and breadth had been 
 given to each lot ; — the number of ranges into which the whole 
 depth was divided, and the number of lots in e;ich range shew that 
 they were designated to be 200 acre lots, as the descriptions after- 
 wards issued have proved. It appears, however, that while Mr. 
 Collins was making his survey it was apprehended that between 
 the Eastern side-line of the township and the harbour too little 
 space had been left for a town, or rather for the common, or open 
 space intended to be attached to the fort then called Fort Frontenac, 
 for it was rather in that light than as the site of a future town that 
 the desired reservation seemed at that early day to be regarded. 
 The Commanding Officer, Major Ross, it seems interposed, and 
 induced the Deputy Surveyor General to alter his original plan. 
 About the time of the survey, in 1783, Capt. Michael Grass, who 
 accompanied the surveying party, was allowed to locate the lot 23 
 in question, which it is plain, according to the first intention, was- 
 te be a 200 acre lot, of the same area, and corresponding in courses 
 and distances with the other lots in the township. But when the 
 Government resolved to make the reservation for the town larger 
 and to take a part of the intersected lot 25 for that purpose, they 
 entered, through their officers, into an equitable arrangement with 
 Capt. Grass, and assigned him lands in the adjoining township of 
 Pittsburg, which he accepted as a sufficient equivalent for the part 
 of his lot taken away. Another map or plan is laid before us, cer- 
 tified bv the Surveyor General of this Province to be a copv of the 
 Quebec plan of the township of Kingston, or rather of that part of 
 it which embraces the land in the vicinity of this boundary, and in 
 
 1^ 
 
Law Report and Decision. 
 
 ftl 
 
 a certificate upon the face of it copied from the original and suh- 
 scribed by Samuel Holland, Surveyor General, it is called the Que- 
 bec Plan of the township No. 1, now Kingston, surveyed by John 
 Collins, D. S. General, in the year 1783. I take it to be generally 
 understood among those conversant in the affairs of the Executive 
 departments of this Province, that the Quebec plan of any township 
 means Ihat plan of the township which the Government of the Pro- 
 vince of Quebec has acted upon and recognized as exhibiting the true 
 plan of survey. It is deemed a public record of high authority. Upon 
 this Quebec Plan the lot No. 25 in question appears to be bounded on 
 the East by a line drawn diagonally from the South Eastern to the N. 
 Western angle of the lot, thus dividing the lot as originally survey- 
 ed or intended to be run, into halves. The line of the township, 
 however, on the East side, is marked out in this plan as in the 
 diagram returned by the Surveyor General, Mr. Collins — that is, 
 running nearly from the S. E. to the N. E. angle of the whole 
 tract of six miles square, and thus leaving that portion of the 
 lot 25 which lies on the Eastern side of the diagonal line still with- 
 in the township as shown upon this Quebec Plan, although it seems 
 to have been cut off from the lot for the purpose, as we find from 
 other documents before us, of being added to the town plot or com- 
 mon. There is next submitted to us a Plan, certified by the Sur- 
 veyor General of Upper Canada to be a copy of the plan of part of 
 the township of Kingston, signed by Alex. Aitkin, Deputy Survey- 
 or of the Midland District, and dated 25th March, 1797. Upon 
 this plan also lot No. 25 in the first concession is described as a 
 triano-ular tract, being originally the whole lot of 200 acres dissected 
 by a line drawn across from the S. E. to the N. W. angle, and the 
 residue of what constituted lot 25, as shewn on Mr. Collins' plan 
 of survey, is exhibited as thrown in the town plot of Kingston. In 
 this plan, however, the Eastern side-line of the lot 24 in the 2d and 
 3d concessions (North of the 1st) is made the Eastern limit of the 
 township, and the lot 25 shewn as a triangular tract of 100 acres, 
 stands as it were within the Eastern line of the township and the 
 town plot. It appears further from a letter transcribed and certified 
 from the Surveyor General's Ofiice, of Quebec, that the Surveyor 
 General Holland, on the 7th May, 1786, wrote to the then Admin- 
 istrator ot the Government (General Hope) that Mr. Kotti, a Sur- 
 veyor, had reported to him that by the application of Capt. Grass 
 and other settlers in Township No. I, he had examined the East 
 boundary line of said township, which he finds from 15 to 13 de- 
 
f 
 
 i 
 
 22 
 
 Law Report and Decisioit. 
 
 grecs west of (he Magnetical North, at which course the h'ne should 
 run. By this Capt. Grass loses half his lo* No. 25, and those in 
 the other concessions behind him will be deprived of the whole lot 
 No. 25 ; and Mr. Kotti, (he adds) '^ has applied to me for my in- 
 "structions how to settle them. It seems these people will 'take 
 "their equivalfent in other unlocated lands," &c. On the 27th 
 August, 1788, it appears this same Surveyor, Mr. Kotti, rt?ceived 
 instructions to make such a Survey, under the direction of a Board 
 of Gentlemen at Kingston, who are named, and of whom Capt. 
 Grass was one, as would correct the inaccuracies in the boundary 
 and division lines of the township. There is nothing before us pur- 
 porting to shew what was done under these instructions. No plan 
 or report of Mr. Kotti's is among the documents. It seems reason- 
 able to assume that the plan of Mr. Aikin's under date of 1797, 
 
 must have exhibited the lines of the corrected survey, but there is 
 no evidence connecting them. Whatever was done appears to have 
 been the result of an amicable arrangement with Capt. Michael 
 Grass, the grantee of lot 25, for among the papers certified from the 
 Surveyor General's office is one under date of the 17th Oct., 1787, 
 in these words : « Arrangement between Mr. Collins, Deputy 
 I* Surveyor General, and Capt. Grass, relative to lot No. 25 in the 
 " first concession of the township of Kingston. In order to settle 
 " and finally determine all difficulties and disputes respecting the 
 " deficiency of lot No. 25, first Township, belonging to Capt. Grass, 
 " on the difference of the line bv which the said lot is run, I do 
 I* hereby promise to giVe Capt. Grass the choice of any two lots 
 "joining each other in the new township lately laid out that 
 
 " are not already granted — the one as a recompence for the defi- 
 " ciency of Lot No. 25, and the other as a bounty from Lord Dor- 
 " Chester." This paper is subscribed by Mr. Collins, and at the 
 foot, " accepted by me, Michael Grass." On the 1st May, 1798, 
 Letters Patent issued to Michael Grass for the lot No. 25, in which 
 the land is thus described—" Commencing at a post in front of the 
 " said Concession, marked No. 25, in the limit between the Town 
 " of Kingston and Lot 25, thus— North 10° West nearly along the 
 " said limit to the Eastern boundary of the Lot number 24 at the 
 " Eastern extremity of the said Concession line, nearly then South 
 " to the front where the harbour of Kingston opens into the Lake 
 " Ontario, then Easterly along the front to the place of beginning, 
 " containing one hundred acres more or less." These letters patent 
 issued at an earlier date than any title from the Crown to other 
 
Law Report and Decisioic. 
 
 23 
 
 o 
 
 lands which could clash with the boundary in question. In 1801, 
 a Patent issued to Sir John Johnson, Bart., for Park Lot No. 1, 
 adjoining to the Town of Kingston, and in 1804 a Patent to Mrs. 
 Anne Earl for Park Lot No. 2, in rear uf the Town of Kingston ; 
 and in 1801 a description issued to Mrs. Magdalene Fergusson, for 
 a farm lot adjoining the Northernmost limit of the Town of Kingston. 
 The two first of these Patents do not even in appearance interkrc 
 with the earlier Patent to Capt. Grass, because, taking as the points 
 of departure certain designated in the respective patents, 
 
 they proceed from thence in a course North 50*^ 20'^ West, 25 
 chains in the one case, and 18 chains in the other, to the distance 
 more or less " to the Easternmost boundary of Capt. Michael 
 Grasses lands.'" the descriptions being limited of necessity by the 
 grant which had already been made to Capt. Grass. It is remark- 
 able that in one oi these patents where the boundary is marked, the 
 course along the boundary (towards the Lake) is called about 
 South 15" East, and in the other patent the same course is called 
 about South 10^ East, from which it would seem that that boundary 
 was not clearly defined. In the grant to Mrs. Fergusson the line 
 running westward is thus given : " Then West 136 perches to the 
 "-public road adjoining the Easternmost line of the Township of 
 " Kingston,"— but that any such road was actually laid out before 
 the issuing of the Patent to Capt. Grass, and if so, what was its pre- 
 cise direction, is not shewn to us. It appears further that on the 8th 
 August, 1817, the Surveyor General of Upper Canada gave in- 
 structions to a Surveyor, Mr. Wilmot, to survey a part of the town 
 plot of Kingston, and lay it out into lots— which instructions are so 
 framed as to shew that the impression in the office then was that 
 the Patents to Capt. Grass, Mrs. Earl, Sir John Johnson, and Mrs. 
 Fergusson did not clash with each other, and that it was intended 
 the proposed survey should not clash with any of them. It appears, 
 indeed, that in January, 1817, Mr. Wilmot had been directed to sur- 
 vey and lay out the whole of the vacant lands in the town plot of 
 Kingston ; a copy of the instructions has not been furnished to us, but 
 on the 6th January, 1818, Mr. Wilmot reported to the Government 
 that he had completed the survey of all the vacant land in the Town 
 of Kingston, and had ascertained the limits between Capt. 
 Grass's land and the Town, and he returned a plan of his survey, 
 a copy of which has been laid before us. On this plan he designates 
 a road as bounding the township on what he calls the Southern 
 boundary, by which he means what the Government in their de- 
 
84 
 
 Law Report and Decision. 
 
 scnptions calls the Easternmost bounds, as llio Western bounds of 
 the town polt,— that is, be lays down a 40 foot road between the 
 town and township, on that side. This road would strike the East- 
 ern side ot lot. No. 24 long before it reaches the second concession 
 line at a point which he designated on his plan as the " North 
 angle of lot number 25 as recognized in the Surveyor General's 
 office ; and along the Western or Township side of this forty foot 
 road, he makes an old fence said to be the South (yes West) boun- 
 tJ'^S- ^.'"gf «"' ,t^e direction of which line he makes as North 
 15 West m the field, and the length of the Eastern side of lot 25, 
 as thus run, till it intersects lot 24, he makes as 66 chains 62 links. 
 He represents further upon his plan that the course of N. 10" W 
 by the middle from the S. E. angle of lot 25 would intersect the 
 Eastern limit of lot 24 at a point much nearer the front, making 
 the area of lot 25 much less than when bounded by the 40 foot 
 road. This road Mr. Wilmot has assumed to be the proper boun- 
 dary of the Township on the East, but upon what authority is not 
 clearly shewn to us, nor does it appear on what foundation the point 
 of intersection of lot 24 is termed in this plan the North angle of 
 25 as recognized in the Surveyor GeneraVs office. If these 
 were shewn to a data well warranted by evidence, of course they 
 would at once decide the point now in controversy. It is to be re- 
 marked that before any survey was made in 1783, the Surveyor 
 General Holland received instructions from Sir Frederick Haldi- 
 mand, the Governor of the Province of Quebec, directing him first 
 to lay out proper reservations for the town and fort, and then to pro- 
 ceed and lay out the township six miles square. If Mr. Collins' 
 plan of survey returned to him is to be taken as the true description 
 of what he did then, the reservation for the town and fort was such 
 as left for a range of 25 full lots of 200 acres each, though it seems 
 clear that he was afterwards led to change this intention and with- 
 draw a portion of 25 in the first concession from the township. 
 
 So far as we are informed the Commissioners found their Judg- 
 ment upon this documentary evidence, together with the viva voce 
 evidence which they have and which shews almost to a 
 
 that the township was in point of fact run out befv)re any 
 survey of the town plots was made,— that the Eastern side of the 
 township was actually so run in 1783 as to give to lot 25 in the first 
 concession, 200 acres,— that before Mr. Collins completed his sur- 
 vey he was induced by the remonstrances of the Commanding Of- 
 ♦jCgr at Fort Frontenac, to make this lot a half lot only, by running 
 
Law Report and Dkcisiow. 
 
 25 
 
 r 
 
 the line for its Eastern boundary diagonally from the South Eastern 
 to its Western anjirle, giving thereby lo lot 26 100 acres, — 
 that a line was then drawn by Collins intended to give this lot 
 100 acres, the true bearing of which line as drawn by Collins^ 
 is North 27o 6© West, giving to lot 86 in fact, only 50 acres, 
 1 qr. and 34 rods, inclusive of the broken front, and the (40 
 foot) road. This statement is made by a Surveyor Kilborn, on 
 the authority, as he swears, of information given to him by per- 
 sons who had been with Collins in the original survey, whom he 
 does not lame. Another witness, Peter Grass, swears that his 
 father, Michael Grass, took possession of his lot in 1784, and 
 found, that his Eastern side lino was inaccurately run, that he 
 got Kotti, the Surveyor, to examine it, who found it to run North 
 22" West, that upon his repre:'entations to the Government, 
 persons were sent up to correct the error, and after examination, 
 one Tuffy was directed to re-survey the line, taking CoUins's line 
 part of the way across the Concession, and then diverging from 
 that ; that Collins's line struck 24 in the 2nd Concession, and that 
 Tuflfy's line gave more land to 26, that Collin's line consequent- 
 ly tended more to the Eastward ; that after this line run by Tuify, 
 his father supposed his lot to contain about 160 acres, but that when 
 he sold his lot to Murney, the father of the present applicant, (which 
 was not till long after the Patent had issued,) it was supposed 
 to contain 100 acres, which is what the Patent assumes, though 
 not in absolute terms. * 
 
 Another Witness, Gilbert Orser, swears, that he assisted in the 
 Survey made by Collins in 1783, that all the lots to 25 inclusive, 
 in the first concession, were actually laid out on the front or base line, 
 that a monument was placed at the South-East angle of lot 25, 
 fVom which monument a line was actually run Northerly the 
 whole depth of the Township 6 miles, where another stone monu- 
 ment was placed, making a line of blazed trees throughout ; that 
 the Township was laid out before the town. Mr. Wilmot, who 
 made the Survey spoken of in November, 1819, was also exam- 
 ined before the Commissioners, swore that he was guided in that 
 Survey by the rear of Park lots No. 1 and 2, as protracting that 
 line^ he found a line of stumps pointed out to him as the line of 
 Captain Grass's land, [not saying by whom] that he laid out a 
 road 40 feet wide between the rear of the Park lots and lot 25, 
 and that he took the line of stumps pointed out to him to be the 
 limit of Captain Grass's land, and was governed by it. The 
 
 ( 
 
 / 
 
Ij 
 
 I 
 
 26 
 
 Law Report and Decision. 
 
 face of the ground is now so altered that Mr. Wilmot going to 
 the place with the Commissioners was unable to point out the 
 course of the line as run by him. 
 
 It will be seen by ibese explanations that the decision of the 
 Commissioners establishes as the Eastern boundary of lot 25, that 
 line which Mr. Kilborn assumes to have been the line run by Mr. 
 Collins, and which he and they describe as running North 27 o 
 6 o West astronomically or true course, this line crosses the whole 
 lot 25, and intersects the Eastern limit of 24 in the first concession 
 at rather less than f of the distance from the front, and leaves for 
 lot 25 only an area of 50 acres and a little more as already stated, 
 and running a little to the. Westward ofWilmot's line. I have 
 noticed already the defects in the manner of bringing up this case 
 for our decision. We do not see stated in writing as we ought to 
 see, the principles and grounds upon which the Commissioners 
 made their decisions, nor the objections which the applicant should 
 have given in as his reasons of appeal, nor the arguments by which 
 the other parties in this controversy may think they can sustain the 
 decision. Another defect, and a very important one is, that the 
 Commissioners have not returned with their decision any plan 
 authenticated by their signatures, shewing the final situation of 
 the boundary established by them. They speak in their Report 
 of a Monument marked 24-25, and there is a map among the 
 papers laid before us signed by Mr. Kilborn, a Surveyor, but 
 this plan is not shown to have been executed under the authority 
 of the Commissioners, nor to have been adopted and recognized 
 by them. With respect to the decision which has been given 
 by the Commissioners, it may be just and reasonable upon grounds 
 and circumstances not disclosed to us, but I do not see how we can 
 pronounce it to be so upon the evidence laid before us. The case 
 seems to stand thus : 
 
 The Township of Kingston was first Surveyed in 1783, under 
 *he instructions of the Government, and by the Deputy Surveyor 
 General, Mr. Collins. He returned a plan of his survey, exhibit- 
 ing 25 full lots of 200 acres each, in the first concession, and mak- 
 ing this lot 25 a parallelogram of the same size and figure as the 
 others. But it seems that at the very time he was engaged in the 
 survey, and before he had completed it he determined to throw the 
 Eastern boundary of lot 25 further back in order to have more space 
 for the Town plot, and he seems to have taken this resolution after 
 Captain Grass had become the locater of that lot. It seems also 
 
 i 
 
Law REroRT and Decision. 
 
 27 
 
 I 
 
 that the alteration which he intended to make was the precise and 
 simple one of cutting the lot in halves hv a line drawn diagonally 
 from the Soiith-East to the North-West angle, which would give 
 to the lot an area of 100 acres instead of 200. Still he returned 
 his plan of survey according to the original design without making 
 this change. Why he did so is not explained. Whether he has 
 transmitted to the office any other plan exhibiting the alteration is 
 not shewn, nor is it certified as it ought to be that the documents be- 
 fore us contain all the evidence which the Surveyor General's office 
 can furnish of the acts and declarations of Mr. Collins in respect to 
 this boundary. I mean not merely the Surveyor General's office 
 in Upper Canada, but that in the Lower Province where the cor- 
 respondence, plans, filed notes, &c. of that time may be expected to 
 be preserved. Jt seems to be assumed by the decisions that Mr. 
 Collins did himself run a line intended to be the new boundary, but 
 I see no proof of this, except what is drawn from this very impor- 
 tant fact that there is in the Surveyor General's office what is call- 
 ed the Quebec plan of the Township in which the concessions and 
 lots are laid down as "surveyed by Mr. Collins in the year 1783," 
 according to which plan this lot 25 is a triangular tract of 100 acres, 
 bounded to the Eastward by a line drawn diagonally from the S.-E. 
 to the N.-W. angle. I do not see how we can avoid inferring from 
 this that Mr. Collins must, after framing the first plan of survey, 
 have reported officially this change made in respect to lot 25, if he 
 made it in the map only without having run a corresponding line 
 on the ground, or if such a line was run by any one else under his 
 direction the effect would be the same. Or if Mr. Collins or any 
 one acting under him, or for the Government, intending to run such 
 a line in a different direction either from inattention or want of skill, 
 or the difficulty of being accurate from any cause, so that instead of 
 the line running up to the N.-W. angle of 25, and touching the 
 2d concession line, it ran too much to the Westward, and intersect- 
 ed the Western side line of the lot long before it reached the second 
 concession ; an error of this kind, if such an error was committed, 
 would be immaterial so long as it is clear what was meant to be the 
 boundary. There is not, and has not been, any law of this Pro- 
 vince which would establish an erroneous line run for such a pur- 
 pose, in preference to the line as described in the Patent, and as 
 intended to be run, because this is neither a township line nor a 
 concession line, but a side line to a lot forming an exception to 
 the general plan of a Survey, and not governed or intended to be 
 
28 
 
 Law Rrport and Decision. 
 
 tf 
 
 ii! 
 
 t ) 
 
 !* 
 
 1 
 
 governed by the direction of any other line. The Government 
 shews by their Quebec plan which is understood to be the recog- 
 nized plan of the township, that they had adopted and confirmed a 
 reported survey which exhibited lot 25 in the form I have des- 
 cribed. It appears further from what I have stated as having taken 
 place in 1786 and 1788, that Michael Grass to whom lot 25 had 
 been located had very early discovered that a line had been run 
 [not shewn how or by whom] which would deprive him of a good 
 part of his expected two hundred acres, that the Government aver- 
 red that it was determined by them not to make his lot a full lot, 
 and thus made an equitable arrangement with bim, and gave him 
 an equivalent for what they meant to take away, which he accept- 
 ed, and that Mr. Kotti, a Surveyor, was publicly instructed to run 
 a correct line for the boundary. Mr. Kotti received these instruc- 
 tions in August, 1788, which shews that up to that time the boun- 
 dary was unsettled in the opinion of the Government, and that if 
 a line had been run on the ground before that time either by Mr. 
 Collins or any one else, it was not such a line as was acknowledged 
 either by the Government or the proprietor of the lot to be the 
 true boundary, consequently all that had been done to that time 
 was immaterial ; now the first defect in the chain of evidence is 
 that it is not shown what was done by Mr. Kotti under the instruc- 
 tions which he received in 1788. If any plan, report, or correspon- 
 dence of his exists in the Surveyor GeneraPs office in either Pro- 
 vince it should be shewn, if nothing of the kind is to be found, that 
 fact should be certified, and we should know whether any trace 
 exists on the ground, or whether satisfactory evidence can from any 
 quarter be adduced of what was done by Mr. Kotti towards estab- 
 lishing the boundary. Some trace too might probably be found of 
 the instructions which were given to Mr. Kotti either by the Sur- 
 veyor General or the Board of Gentlemen who were authorized to 
 employ him, which might shew the description of the line which 
 he was requested to run. In the absence of all other evidence on 
 these points it is material that it should be known whether the 
 Quebec plan spoken of was compiled in the office after August, 
 1788, because it it was, the natural presumption would be that it 
 adopted the line which Mr. Kotti was reported to have run. If 
 it was compiled and in existence before August, 1788, then the 
 inference is material that Mr. Kotti must have been desired to run 
 his line so that it would accurately mark out on the ground what 
 is delineated in the map. All that we can learn from the docu- 
 
Law Report and Decision. 
 
 29 
 
 wernment 
 he recog- 
 >nfirmed a 
 have des- 
 f^ing taken 
 lot 25 had 
 been run 
 of a good 
 nent aver- 
 a full lot, 
 gave him 
 he accept- 
 ;ted to run 
 se instruc- 
 the boun- 
 md that if 
 er by Mr. 
 nowledged 
 ; to be the 
 that time 
 evidence is 
 he instruc- 
 correspon- 
 Bither Pro- 
 found, that 
 any trace 
 n from any 
 irds estab- 
 be found of 
 y the Sur- 
 thorized to 
 line which 
 vidence on 
 hether the 
 )r August, 
 I be that it 
 e run. If 
 , then the 
 red to run 
 round what 
 n the docu- 
 
 ments before us is this very material fact, that in a plan in the office 
 which is certified to us as one of their public records, Mr. Aitkin, 
 the Surveyor General for the Midland District, descriljes this lot 
 26 [on the 25th March, 1797,] exactly as it stands on the Quebec 
 plan, that is as being half of the original 200 acre lot, and bound- 
 ed by a line drawn from the S.-E. to the N.-W. angle. AH this 
 tends strongly to shew that if any line had been actually marked 
 out on the ground before March, 1797, bounding the lot 25 by a 
 line drawn in another manner, and intersecting the Western limit 
 long before it reached the second concession, such line could not 
 have been run under instructions from the Government or with their 
 knowledge at the time, nor is it shown by any evidence to have 
 been recognized or even known at the office, up to the 24th March, 
 1797. Then in May, 1798, the Patent issued, describing the lot, 
 when, for all that appears, matters stood precisely as they did when 
 Mr. Aitkin's plan was stated. Now, at the time of issuing this 
 Patent, the Government yet owned all the adjoining land, they 
 could therefore grant the lot to Captain Grass, bounding it as they 
 chose, that is, they could either make it to correspond with the 
 Quebec plan, and Mr. Aitkin's plan, or they could describe and 
 confine the land within such other limits as was thought fit. No 
 Statute that ever passed restrained them, nor any principle of the 
 common law, nor any prior grant made by the Crown, for all the 
 land to the Eastward was still ungranted. If it could be shewn 
 clearly that before this Patent had been made out a line had been 
 run by direction of the Government, such as the Commissioners 
 have decided upon establishing, that such line had been made 
 known to the Government and officially confirmed, then it would 
 be right to presume that the Government intended to make the Pa- 
 tent conform to the boundary which their Surveyor had laid down 
 and reported, and then also it would be just so to construe the des- 
 cription given in the Patent by every intendment that could possibly 
 be made, as to make it cover that land and no more, which we 
 must then suppose the Govern'nent designed to grant. But noth- 
 ing is shewn us which can be supposed to have formed the founda- 
 tion of a Patent intended to convey a tract so bounded as the Com- 
 missioners had bounded lot 25 in their decree. We see nothing 
 that authorizes us to say that the Government, when they were 
 about preparing a Patent for this land, must be supposed to have 
 intended that it should convey to Michael Grass about 50 acres 
 only, and that the Eastern limit of the tract should fall more than 
 
:^ 
 
 4 
 
 I 
 
 80 Law Report and Decision. 
 
 30 chains short of the secoi »1 concession. Thus, when we look 
 at the Patent we find that it assumes the quantity of land to be 
 about 100 acres, and that the Eastern boundary is carried to " the 
 Eastern extremity of the second concession line nearly." The 
 description is not precise. One can easily understand why the course 
 should be described as North 10 o West nearly, instead of givino-. 
 the exact course, because the description being drawn, as we may 
 suppose, with the map in view, the length of the lots being known, 
 and the course of the side lines of the whole lot being North, it was 
 probably seen that in order to divide the lot diagonally into equal 
 parts, the line must be drawn about 10 o to the West, and that is- 
 expressed as being the course nearly. But when the description, 
 speaks of the point to be arrived at, I do not see why it should not 
 in that part have been expressed more precisely. If it had been 
 said thus— to the North-West angle of lot 25, or to the Western 
 limit of lot 26, when it the second concession line, 
 
 there could have been no room for doubt, and the course express- 
 ed would have become immaterial ; as it stands, it seems to give 
 some confirmation to the evidence of Peter Grass, that the line run 
 by Tuffy by way of arresting the boundary, gave more land to 25 
 than Mr. Collins, and as he understood, left their father about 
 160 acres, which it could only have done by striking the second 
 concession line to the Eastward of the limit of lot 24. As the des- 
 cription now stands, I can only understand it to mean that the boun- 
 dary is to be carried to the second concession line, and nearly to the 
 Eastern extremity. What they considered as the Eastern extremi- 
 ty it is not easy to say. Acccording to Mr. Collins's first plan of 
 survey, it would have been 20 chains from the Western limi* of 
 lot 24. If it wiu meant that the alteration should have the effect of 
 carrying the concession no further to the Eastward than lot 24, 
 then the description ought to have said simply — to the extremity of 
 the 2nd concession line. Taking the whole as it stands, that the 
 Town lines are assumed in the Diagram to be North and South, 
 that North 10 o West must be taken with- reference to that fact ; in 
 other words, that this boundary is meant to diverge only 10 o de- . 
 grees from the course of the other side lines, — that the Quebec 
 plan exhibits lot 25 and half of the original parallelogram, and 
 reaching on the West to the 2nd concession, that the description in 
 the Patent assumes the area to be 100 acres or about that, and 
 carries the limit to the second concession line near the Eastern 
 extremity^ I think we cannot see that in assuming to lot 24 a 
 
 'j 
 
Law Report and DECisioNr 
 
 31 
 
 we look 
 id to be 
 to « the 
 ." The 
 le course 
 )f giving, 
 we may 
 \ known, 
 b, it was 
 tto equal 
 d that i& 
 scription. 
 ould not 
 lad been 
 Western 
 ion line,, 
 express- 
 5 to give 
 line run 
 id to 25 
 er about 
 second 
 the des- 
 le boun- 
 y to the 
 ixtremi- 
 plan of 
 limi* of 
 effect of 
 lot 24, 
 mity of 
 :hat the 
 South, 
 fact; in 
 ) o de- . 
 Quebec 
 m, and 
 tion in 
 at, and 
 Eastern 
 t24 a 
 
 ': 
 
 
 limit which would vary 23 o from the course of the other side lines 
 instead of 10 o more than 30 chains short of the 2nd conces- 
 
 sion, and give to the grantee only 50 acres instead of 100, the 
 Commissioners have varied altogether from wliat the Patent seems 
 designed to convey. Certainly the line which is appealed against 
 cannot be said to be a line taken from the Patent, nor is it taken 
 from any record or plan sanctioned by the Government upon which 
 we can suppose the description to have been framed, no such record 
 or plan at least has been shewn to us. Upoi) what ground then is 
 it supported. If at any time before the Patent issued, such a line 
 had been run out by authority upon the ground, it must either have 
 been a line rightly laid out in accordance with public instructions, 
 or a line inaccurately run deviating from the instructions. If the 
 former, we must have come proof of the authority and instructions, 
 or some proof of a subsequent adoption of the line. The plans that 
 have been shown us show no such adoption. If the latter, that is, 
 if such a line was run, but run by error, of which error the Govern- 
 ment are not shown to have been conscious ; ot have they issued 
 their Patent and do not therefore notice it or conform to the erron- 
 eous line, — that there is no principle in which we can say that the 
 erroneous line must prevail against the Patent. If such an erron- 
 eous line were shown to have been run in the original survey, 
 which is not shown — this, as I have before stated, is not a case m 
 which such inaccurate line couFd be preferred to the course given 
 by the Patent. It need hardly be said that what was done by Go- 
 vernment after their Patent was issued, cannot affect the question, 
 because the Crown cannot grant and afterwards at its pleasure take 
 away the land granted, or any part of it. The grants made of Park 
 Lots 1 and 2, and of the other tracts mentioned, cannot afTect the 
 decision because they were made afterwards, and could not cover 
 land which had been granted before. Mr. Wilmot's survey, there- 
 fore, cannot be material, because he began by assuming that the 
 Western limit of those other tracts being produced, must form the 
 limit of the lot 25, and he was directed to make his survey on that 
 principle ; but the first question is not what Park lots No. 1 and 2 
 covered as described but what lot 25 covered, because that first took 
 up the ground so far as its limits extended. It may be just, and 
 even necessary, on public considerations, that lot 25 should not now 
 be allowed to have that extent which was given it by the Quebec 
 Plan and the Patent, but such considerations as I allude to would 
 properly form the basis of a legislative measure, in which the rights 
 of parties must be made to bend in order to suit the general v/elfare, 
 
I 
 
 i ■■ 
 
 p 
 
 32 
 
 Law Report and Decision. 
 
 upon some equitable arrangement which we must suppose would be 
 made. It may also be not only just but legal to hold that the pro- 
 prietors of lot 25 are now precluded from claiming what tlio Patent 
 seems to give, either in consequence of their long acquiescence in 
 the adverse possession held by others, or by some act which may 
 have been done compromising or limiting their rights — but nothing 
 is or properly can be shewn to us as the grounds of the decision of 
 the simple question of Boundary. Such facts are for the consider- 
 ation of Courts and Juries whenever the right to the possession may 
 come in question, and they will and must have their legal effect 
 however the line of boundary may be fixed. 
 
 Upon the case as it is before us, I think that we shall be compell- 
 ed to say that the decision of the Commissioners must be reversed, 
 since we see no authority for saying that ?Ir. Collins ever laid out a 
 line as they assume, runnmg-liorth 27" 6" West, true course, — or, 
 if he did, that the Government ever confirmed that as the boundary. 
 
 It would be material to shew, if it can be shewn — 
 1st, — Whether Mr. Collins' Field Notes, or Correspondence, or 
 
 Plans, shew that he did actually lay out an Eastern boundary 
 
 for Lot 25, assigning to the lot less than 200 acres, and how he 
 
 described it. 
 2nd, — When the Town Plot was Surveyed, and how its Western 
 
 boundary is described. 
 3rd,— Whether the Government is in possession of any document 
 
 shewing that Kotti or any other person did, by authority, run out 
 
 a line intended to be the Eastern boundary of Lot 25, after the 
 
 original survey by Collins. 
 4th, — Whether such line was ever confirmed by the Government. 
 5th, — When the Quebec Plan of the Township of Kingston was 
 
 framed, and upon what S ur vey it was grounded as respects this line. 
 6th, — Upon what Map the description in the Patent was framed. 
 7th, — How the Surveyor General can explain the using the term"a< 
 
 the Eastern extremity of the Second Concession line nearly.'^'' 
 8th, — Why the Lot was assumed by the description to comprise 
 
 about 100 acres. 
 9th, — Whether there is, in the Surveyor General's Office, any evi- 
 dence of a Survey corresponding with the line laid down by the 
 
 Commissioners, or nearly so. 
 10th, — Upon what authority it is noted on Mr. Wilmot's Plan, that 
 
 the point marked thereon is recognized in the Surveyor General's 
 
 office as the North Western angle of Lot 25, and when it was 
 
 first recognized as such, and on what grounds. 
 
suppose would be 
 hold that the pro- 
 j what the Patent 
 * acquiescence in 
 le act which may 
 jhts — but nothing 
 jf the decision of 
 ! for the consider- 
 be possession may 
 their legal effect 
 
 I shall be compell- 
 must be reversed, 
 ns ever laid out a 
 , true course, — or, 
 : as the boundary, 
 n— 
 
 )rrespondence, or 
 ilastern boundary 
 cres, and how he 
 
 how its Western 
 
 of any document 
 
 luthority, run out 
 
 Lot 25, after the 
 
 the Government, 
 of Kingston was 
 5 respects this line, 
 sntwas framed, 
 using the term"a< 
 ion line nearly.'''' 
 iption to comprise 
 
 's Office, any evi- 
 laid down by the 
 
 ilmot's Plan, that 
 
 urveyor General's 
 
 and when it was 
 
 CONCLUSION. 
 
 The Author of " Mentoriana" has much pleasure and satisfactiott 
 in closing the Communications supplementary to its publication, and 
 avails himself of the opportunity of stating' for the information of 
 the Public, the decision of two important and distinct cases heard 
 and adjudged in the Courts of Justice and Law in this Province. 
 
 The case of Ejectment in the suit of George Okill Stuart, Plain- 
 tiff, vs. Thomas Brown, was heard and adjudged in the Sitting of 
 the Assisces under Justice Hagerman, in the year 1843. The case 
 involved two points, the Question of the Parallel Eastern limit and 
 Boundary line of Lot No. 24, and the operation of the Law of 
 Adverse Possession in the case. 
 
 The learned Judge in his charge to the Jury admitted the parallel 
 Eastern limit and Boundary line of Lot No. 24, run by Deputy 
 Surveyor Kilborn in 1841, and confirmed in the Queen's Bench by 
 judgment on Appeal from Boundary line Commissioners, but decid- 
 (?d the case in suit in favour of the Defendant, Thomas Brown, on 
 the Title of adverse possession for twenty years. 
 
 The Plaintiff in this Case referred the decision or verdict of the 
 Court of Justice and Jury against him by an Appeal to the Court of 
 Law at Toronto. The Chief Justice Robinson decided the Case in 
 favour and support of Adverse Possession, founded on the 4th of 
 William the IVth, a Provincial Statute of the Country. 
 
 The Case admits of an Appeal against its valdity and legality to 
 Her Majesty in Council, on the grounds that the Patentees of the 
 Crown are excepted from the operation of the Provi ncial Statute 
 of the 4th of William the IVth, and that their Patent rights are 
 secure and inviolate on the faith and act of His Majeslv George the 
 3d. 
 
 The second and latter Case of Ejectment was heard and adjudged 
 in the Sitting of the Court of Assizes in June, 1844, between the 
 Venerable George Okill Stuart, Plaintiff, and John R. Forsyth, 
 Esquire, Defendant, under Chief Justice Robinson. 
 
 The learned Chief Justice in his Charge to the Jury did not admit 
 the parallel Eastern limit and Boundary line of Lot No. 24, although 
 confirmed by the Court of Law at Toronto in appeal, but allowed 
 the erroneous Boundary line of the Commissioners to be substituted 
 in its place, at variance with the Case of Stuart vs. Brown under 
 Justice Hagerman. This Case as the former one, involved two 
 
I,' 
 
 ii 
 
 Bi f 
 
 it 
 
 34 
 
 Conclusion. 
 
 points, tl)e Question of the Eastern Boundary line of Lot No. 24, 
 and the operation of the Title ol Adverse possession in the case. 
 
 The learned Chief Justice in his Charge to the Jury in this case 
 decided the point of Adverse possession as not operating against the 
 right of the Plaintiff, but his Lordship charged the Jury with an in- 
 junction to bring in and give their verdict in favor and support of 
 the claim and right of the Defendant, founded on the erroneous 
 Boundary line of the Commissioners, and the rejection of the parallel 
 Eastern limit and true Boundary line of Lot No. 24. 
 
 This second and latter Case admits of an Appeal to His Excel- 
 lency the Governor General in Council, constituting the Court of 
 Appeal in the Province, on the grounds of Patent right and Statute 
 Law of the Province, the 69th of George 3d, and of the Report 
 and decision of the Court of Law in the Queen's Bench in Judge- 
 ment on Appeal from Boundary line Commissioners, George Okill 
 Stuart and Alexander and others. 
 
 MENTOR. 
 
 'f 
 
 t 
 
 
4 
 
 )fLot No. 24, 
 in (he case, 
 ^uiy in this case 
 iting against the 
 ury with an in- 
 and support of 
 1 the erroneous 
 m of the parallel 
 
 i 
 
 I to His Excel- 
 ig the Court of 
 ight and Statute 
 i of the Report 
 iench in Judge- 
 s, George Okill 
 
 MENTOR.