1798 Surveyor's Map of the Town of Pelham And Copy of 1711 Map of Pelham Border with New Rochelle

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With each passing day, more and more material of historical significance regarding the Town of Pelham becomes easily available online.  Each such item sheds a little more light on the history of our Town.  

Recently a surveyor's map of the Town of Pelham completed on February 22, 1798 that once could be seen only by visiting the New York State Archives has become easily available in high resolution online as part of "The Digital Collections:  A Gateway to Materials Held by the New York State Archives, New York State Museum & New York State Library."  The map is entitled "Town of Pelham West Chester County Scale Twenty Chains to an Inch James Davenport.  Surveyor.  22nd February 1798."  It is an interesting map.  Far more interesting than the map, however, is its use in a subsequent boundary dispute of note and references to it in a related litigation.  The story regarding creation of the map is detailed below after an analysis of the map.  Additionally, a second map that is a copy of a 1711 map of the boundary line between Pelham and New Rochelle is addressed in the same context below.   

Analysis of the 1798 Davenport Map and its More Legible Copy

The original map is in very poor condition.  The State, however, also has available a newer identical copy of the map that is in excellent condition.  Both are available in high resolution online.  Below I have included low resolution images of the original map and the copy of the map.  Beneath each is a citation to its source and a link to the high resolution digital image that may be magnified to very, very high resolution.

Low Resolution Image

of Original Surveyor's Map Entitled

"Town of Pelham West Chester County

Scale Twenty Chains to an Inch

James Davenport.  Surveyor.  22nd February 1798."

NOTE:  Click on Link to Access High Resolution

Digital Image of the Map.  Occasionally the Page

Does Not Load Correctly within the Flash Plug-in

Within the Chrome and Explorer Browsers.  It May

Look as Though the Image Failed to Load and the

Page is Blank.  Usually, You Simply Have to Scroll

Down the Screen and the Map Will Display Lower

on the Seemingly Blank Page.

Low Resolution Image

of Copy of Surveyor's Map Entitled

"Town of Pelham West Chester County

Scale Twenty Chains to an Inch

James Davenport.  Surveyor.  22nd February 1798."

NOTE:  Click on Link to Access High Resolution

Digital Image of the Map.  Occasionally the Page

Does Not Load Correctly within the Flash Plug-in

Within the Chrome and Explorer Browsers.  It May

Look as Though the Image Failed to Load and the

Page is Blank.  Usually, You Simply Have to Scroll

Down the Screen and the Map Will Display Lower

on the Seemingly Blank Page.

On March 7, 1788, the New York State legislature enacted a statute creating a number of towns in Westchester County including the Town of Pelham. Thus, for the first time, the Town of Pelham existed and encompassed an area including much of today's Pelham Bay Park and all of City Island in the Bronx as well as all lands within today's Town of Pelham.  The surveyor's map by James Davenport that is the subject of today's posting was created barely a decade after the creation of the town from what previously was known as the Manor of Pelham.  The map is significant because it purports to show the entire boundary between Pelham and New Rochelle.  It should be noted that the map shows the boundary with New Rochelle as lying well northeast of the tip of Henderson Island (today's Hunter's Island).

The map is fascinating for a host of reasons.  For example, it shows the paucity of colonial roadways that traversed the Town at the end of the 18th century.  Every such road that cut across Pelham at that time followed ancient Native American pathways that long had crossed the land.

Near the upper portion of the map is the road labeled "Boston Post Road."  It is a reference to the old Boston Post Road that we know today as Colonial Avenue.  On the map, the roadway is shown crossing the Hutchinson River at a point that was known as the first location above Eastchester Bay where the Hutchinson River could be easily forded.  Today, that is the location where traffic passes under the Hutchinson River Parkway overpass from Colonial Avenue onto Sandford Boulevard when traveling toward the City of Mount Vernon.

The roadway that extends southward from "Boston Post Road" is marked on the map as the "Road from the foot of the Neck out to the Post Road."  We know part of that road today as a combination of today's Wolfs Lane and today's Split Rock Road.  In fact, there is a little "jog" in the upper part of the road that seems to be where today's Wolfs Lane ends at the Boston Turnpike (today's Boston Post Road which had not yet been built at the time of this map) and where today's Split Rock Road picks up on the other side of today's Boston Post Road.

Today, Split Rock Road ends at the New York City boundary, beyond which lies I-95 (the New England Thruway) and, beyond that, today's Pelham Bay Park.  At the time this map was created, the portion of the "Road from the foot of the Neck out to the Post Road" that we know today as Split Rock Road continued uninterrupted from the end of today's Wolfs Lane across the area traversed by the New England Thruway, past Split Rock, and along a route through today's Split Rock Golf course until it arrived at today's Shore Road near the parking lot of the Pelham Bay and Split Rock Golf Course Clubhouse.

At that point, the roadway split.  The main roadway continued onto Pelham Neck toward the area marked on this map as "Rodman's Point."  The portion of the roadway that led onto Pelham Neck very roughly followed the course of today's Orchard Beach Road and Park Drive down onto the Neck.  At the point where the roadway split, the roadway that intersected with the roadway toward Pelham Neck is marked on this map as the "Road to New Rochelle Landing."  This is the road that we know today as "Shore Road."  If you follow the course of that roadway toward New Rochelle on this map, you will see that it crosses a little stream across from "Hendersons Isl."  That stream is the low-lying area near the Pelham Manor / New York City border so familiar to those of us today who travel along Shore Road that constantly floods after heavy rains.

Hendersons Island and the Twin Islands reflected at the location are known today as Hunter's Island and the Twin Islands.  During the 20th century Hunter's Islland (formerly Hendersons Island) was connected to the mainland as part of a Robert Moses project to create today's Orchard Beach.  The island was known at that time as Henderson's Island because it was owned by Alexander Henderson.  I have written extensively about Alexander Henderson, his son William Henderson, and Henderson Island.  See, e.g.:

Thu., Apr. 06, 2006:  Alexander Bampfield Henderson: "Lone Lord of the Isle."

Fri., Mar. 31, 2006:  Text of 1804 Will of Alexander Henderson, Owner of the Island Later Known as Hunter's Island.

Fri., Feb. 24, 2006:  Notice of Settlement of the Estate of Alexander Henderson of Pelham in 1805.  

Fri., Aug. 17, 2007:  Advertisement Offering Alexander Henderson's Island Estate To Let Published in 1807.

Wed., Dec. 14, 2005:  New Information About John Hunter's Acquisition of Hunter's Island in the Manor of Pelham.

Another interesting feature of this surveyor's map by James Davenport relating to Henderson Island is that it depicts a "Causeway between the Isl. & Main" showing that a causeway existed during the time Alexander Henderson owned the island before it was sold to John Hunter in about 1812.  The causeway appears to have stood where John Hunter's stone causeway later stood after John Hunter bought the island and built his famed mansion.

There is a final interesting point to be made about the map.  At the time James Davenport surveyed the area and created his map, the only road on Pelham Neck was the one that extended down the Neck toward Rodman's Point.  No effort yet had been made to build the bridge later known as Pelham Bridge across Eastchester Bay.  Eastchester Bay is depicted on the Davenport map as "Bay between Westchester [meaning the Village of Westchester that was centered near today's Westchester Square in the Bronx] and Pelham."

The Davenport Map of the Town of Pelham and its excellent copy are held in the collections of the New York State Archives.  The "Identifier" number of the original map is NYSA_A0273-78-404.  The Identifier number of the copy of the map is NYSA_A0273-78-404A.  

The Pelham / New Rochelle Boundary Dispute and a Copy of the 1711 Bond Map

The Town of Pelham and the Town (later City) of New Rochelle battled for many, many years over where the boundary line that extended from Long Island Sound onto the mainland should be located.  I have written about this extensive dispute and its resolution on numerous occasions.  See:

Thu., Mar. 16, 2006:  1869 New York Herald Article About Pelham's Boundary Dispute with New Rochelle.

Mon., Sep. 17, 2007:  Articles About the 19th Century Boundary Dispute Between Pelham and New Rochelle.

Tue., Feb. 10, 2009:  Another Article About the 19th Century Boundary Dispute Between Pelham and New Rochelle.

Two maps created by surveyor James Davenport have figured in different aspects of these extensive boundary disputes including the map analyzed above.  Another map created by James Davenport that is also in the collections of the New York State Archives that likewise figured in the disputes is a copy of a map by "Captain Bond" created in 1711 that depicted the boundary line between Pelham and New Rochelle.  A low resolution image of that map, together with a citation to its source and link to a high resolution image of the map appears immediately below.

Low Resolution Image

of Copy of Surveyor's Map Entitled

"Map of the Town of New Rochelle, Westchester
County. Drawn from an ancient map, which was
surveyed by Abraham Bond in 1711, by Jas. Davenport."

NOTE:  Click on Link to Access High Resolution

Digital Image of the Map.  Occasionally the Page

Does Not Load Correctly within the Flash Plug-in

Within the Chrome and Explorer Browsers.  It May

Look as Though the Image Failed to Load and the

Page is Blank.  Usually, You Simply Have to Scroll

Down the Screen and the Map Will Display Lower

on the Seemingly Blank Page.

Note that, unlike the 1798 Davenport map already discussed above, this copy of Captain Bond's 1711 survey seems to show Pelham's boundary with New Rochelle NOT as though it existed well northeast of Henderson Island (today's Hunter's Island) like the other map but, instead, as though the boundary intersected the tip of Henderson Island shown in the extreme lower left of the copy of the 1711 map.  Clearly there would seem to be a major difference in the placement of the Pelham / New Rochelle boundary on the two maps.

In his book on the history of Pelham published in 1946, Lockwood Barr addressed the boundary dispute between Pelham and New Rochelle in which the Davenport copy of Captain Bond's map was used.  In later litigation regarding the boundary, it was noted that at the time the boundary was settled in 1870, the surveyors involved apparently were not aware of the Davenport map of the Town of Pelham surveyed on February 22, 1798.  Lockwood Barr wrote about the disputes as follows:

 "PELHAM--NEW ROCHELLE BOUNDARY LINE 

The boundary line between the Town of Pelham and the City of New Rochelle has been shifted several times, from its original location. When John Pell, in 1689, sold to Jacob Leisler the 6,100 acres--which tract is now New Rochell--the boundary line started at a point in the Hutchinson River at the northern tip of the Manor of Pelham, ran south to a monument in the Great Swamp, now in the Pelham Country Club, just north of the Branch Line of the New Haven Railroad. Thence the line ran in a southeasterly direction to ". . . a certain White Oak Tree, standing at High water mark on the South end of Hog Island." (Now Travers Island.) 

This White Oak tree has long since vanished, but evidences of this original line, from the monument in the Great Swamp to the White Oak tree, may still be traced on old maps showing property lines in New Rochelle, and by remnants of stone walls. A section of one of these old stone walls is in the woods directly opposite the present entrance gate of The Priory. 

The original line from the monument in the Hutchinson River to the monument in the Great Swamp was shifted eastward 200 feet more or less. Where this new line then intersected the original line, from the monument in the Great Swamp to the White Oak, a new monument was set in the Swamp, south and east of the original monument. At this new monument in the Swamp an angle was turned, swinging the line from there to the Sound, south and eastward. This new line ended at the Sound, bisecting Travers Island, and a monument was set at the Water several hundred feet north and east of where stood the old White Oak on the South End of the Island. At that time, two other monuments were set on Travers Island. That placed back into Pelham Manor tracts which had been considered to lie in New Rochelle. One such piece is the corner of the property of Christ Church, at the corner of Pelhamdale and the Shore Road. 

Since the several shifts which have been made in this boundary line have not elsewhere been compiled--a summary is herewith presented. 

The present line was established by an Act of the New York Legislature, Chapter 782, of the laws of 1870, and its location fixed by Act of the Board of Supervisors of Westchester County, passed March 16, 1898, and is shown on Map 1332 filed July 18, 1898, in the Office of the Recorder. The boundary dispute was again brought up before the Board of Supervisors and fixed November 1927 . (See Appendix to Laws of 1929, page 1773, Sec. A.) 

The original boundary line was established on Sept. 20, 1689, when Jacob Leisler bought from Sir John Pell, 2nd Lord, the 6,100 acres of land as a home for the French Huguenot refugees. The line in the deed was as follows: 'Beginning at the West of a certain White Oak Tree marked on all four sides, standing at High water mark on the South end of' Hog Neck, by shoals harbor and runs (thence) northwesterly through the great fresh water Meadow lying between the Road (the old Post Road now Colonial) and the Sound, and from the north side of said Meadow where the said line crosses said Meadow to run thence due North to Bronckes river, where is the west division line between John Pell's and the aforesaid tract. . .'

The earliest known map showing that boundary line between the Manor of Pelham and New Rochelle bears the title 'Drawn from an Ancient Map which was Surveyed by Abraham Bond in the year of the Lord 1711. Laid down 20 Chains to the Inch--Drawn by James Davenport.' 

There is also a map entitled Town of Pelham, West Chester County. James Davenport, surveyor, February 22, 1798, which map purports to show Capt. Bond's line between New Rochelle and the Town of Pelham, the latter erected in 1788 when the County was divided into Townships. 

From the monument in the Hutchinson River, Capt. Bond's Line ran due south by the magnetic compass to the monument in the swamp in the Pelham Country Club. At the monument, Capt. Bond's line bent south 27° east and ran to the Sound--presumably to the 'White Oak Tree marked on all four sides, standing at High Water mark on the South end of Hog Island.' 

There are several undated maps showing Pelham and New Rochelle--being pages from books of real estate maps. Some of these maps can be dated after 1848 , for they show the main line of the New Haven Railroad, but surveyed before 1873, since they do not show the Harlem Branch Line. These maps show the boundary line clearly. 

The Shore Road has been widened and shifted since these maps were drawn. What is now Pelhamdale Avenue was shown on these maps as a country lane beginning in New Rochelle, running north-westerly for a short distance into Pelham, then curving back into New Rochelle, and coming to a dead end south of the present Hillcrest. These maps show clearly a small triangular tract in New Rochelle, bounded on the south by the Shore Road, on the east by what was then Pelhamdale, and on the third side by Christ Church property in Pelham. 

Supporting these maps there is the fact that John Hunter and his wife, Anne, owned a tract extending several hundred feet easterly from the Christ Church, along and north of the Shore Road (except the Kemble-Emmet tract on the Shore Road). This Hunter tract was subsequently owned by their son, H. G. Hunter. There is a map of this tract dated 1891, bearing the name of Anne M. Hunter, and a subsequent undated revised map bearing the name of her son, H. G. Hunter--the latter map being a tracing of the first. Neither of these two maps shows the present boundary line between Pelham and New Rochelle. Both of them show this triangular tract of land as being west of Pelhamdale Avenue. 

This triangular tract was sold to Nanette Ann Bolton of The Priory by John and Anne Hunter, March 27, 1867, and the deed is recorded Liber 640, p. 54. The tract is described as follows: 'All that certain piece or parcel of land situate, lying and being in the Town of New Rochelle, in the County of Westchester, State of New York, being a small triangular shaped piece of land lying northeasterly and a short distance from the stone building formerly used for a school house, but now an Episcopal Parsonage, bounded southeasterly on one side by Pelham Road, northeasterly on one side by land now or late of Elbert Roosevelt, and westerly on the other side by land now or formerly owned by said Nanette Anne Bolton, etc. etc.' This triangle Miss Bolton subsequently deeded to Christ Church.* [Footnote * states as follows:  "See page 174]  

The Hunter map of 1891 shows the base of the triangle on the Shore Road as 72 feet 6 inches, extending west from the corner of the Shore Road and Pelhamdale. Unfortunately, the length of the other two sides are not shown. The angle formed by the Shore Road and Pelhamdale was shown as 88 degrees and 26 minutes; the angle formed by the Shore Road and what would be the hypothenuse, if it were a right-angled triangle, is shown as 60 degrees and 4-5 minutes. Consequently, the third angle must be 30 degrees and 49 minutes. The Hunter map of 1891 gives the bearing of the northwesterly side of the triangle--namely, the side across the face of the Christ Church property, as N.23 and one-half degrees W. This triangular tract which, in the deed of 1867 was described as being in New Rochelle, of course is now part of the Christ Church property, being the corner of the tract, and is in Pelham Manor, since the present boundary line is several hundred feet eastward.

The Schuyler-Crosby Survey, made 1872, is shown on map No. 615, filed February 17, 1874 , and is entitled Map Showing the Boundary Line dividing the Towns of Pelham and New Rochelle, Westchester County, New York, surveyed in accordance with the law passed by the New York Legislature, May 12, 1870: George W. Davids, Supervisor, New Rochelle; Ben Hegeman, Supervisor, Pelham; John Schuyler and Horace Crosby, Surveyors, scale 200 feet to an inch (surveyed) 1872. 

This Schuyler-Crosby Map has the following note: 'The point marked A on Town Line was established by measuring the width of the Town as given on Captain Bond's map, from the Town Line between Marmaroneck [sic] and New Rochelle, westerly along the line of the center of Eastchester Road. The point marked B on the Town Line was established in like manner, by measuring westerly, the distance given on Capt. Bond's Map from the center of the Town, along the line between Andara Barrat and Andara Nodind, Jr. A straight line was then run through these points from the middle of the Hutchinson River to the north edge of the big swamp (now in the Country Club, north of the Harlem Branch of the New Haven Railroad). This is the Town Line as shown on Capt. Bond's map, the bearing of which then given, stood North and South. From the Swamp to the Sound, the bearing of the line according to :Capt. Bond's map is S27'E, hence at the north edge of the swamp a deflection of 27' to the left was made, and another straight line was run to the Sound. The broad red line upon the map represents the correct Town Line.' On this 1872 Survey Map No. 615, filed February 17, 1874, the line from the monument in the Country Club to the Sound has the following notation above it: 'N27W by Capt. Bond's Map 1711'; and below the line: 'N28 30W from magnetic meridian.' 

The next map found showing the boundary is No. 1332, filed July 18, 1898, surveyed by John F. Fairchild, Engineer, title of which reads: Map Showing the Established Boundary line between the Town of :New Rochelle and the Town of Pelham, Westchester County, New York. We hereby certify that the map was made in accordance with provisions of Chapter 782, Laws of 1870, State of New York, and an Act of the Board of Supervisors, Westchester County, passed March 16, 1898. 

On this map there is a monument at the edge of the Sound on Travers Island, marked G, and a monument beyond the Great Swamp in the Country Club, marked C. Underneath the line between these two points there is a Note which reads : 'Line 'G-C' is the line surveyed by Schuyler & Crosby (in 1872) as the Town Line, south of the angle at the northernly edge of the Big Swamp, and shown upon Map 615 (filed February 17, 1874).' Immediately above the line is the following notation: 'N 27--15W.' 

* * * 

From a letter dated New Rochelle, Sept. 13, 1944, from Morgan H. Seacord of the Huguenot & Historical Associates, the following is quoted: 'There appears to have been some disagreement about this line prior to 1870. I do not know when or how it started, or the details of the respective claims; however, the matter was not settled as it was supposed, by legislation, Chapter 782 of the Laws of 1870, which act fixed the line as shown by the Bond Map of New Rochelle. Evidently this did not clear up the matter as to exact location, and Pelham petitioned the Board of Supervisors in the fall of 1897, to locate and fix the line. I do not have before me, a record of the subsequent proceedings there, but it appears that it was done in due course. Nevertheless, the action so taken was challenged in the case of Govers vs. Board of Supervisors, which was decided in the Court of Appeals in 1902, reported in 171 New York Reports, page 403. In the interval between 1870 and 1902, the Bond map had disappeared, probably stolen, and has never been found to this day. The boundary line dispute was again brought before the Board of Supervisors in 1927, and it was fixed in November of that year.' (See Appendix to Laws of 1929, page 1773 &c.) 

Thomas B. Fenlon, one time member of the Board of Supervisors of Westchester Co., from the Town of Pelham, wrote in January, 1945:  '. . . the case of Govers v. Board of Supervisors shows that Supervisor Shinn of Pelham applied to the Board of Supervisors in 1897 for a resolution or act determining the boundary line between the Towns of Pelham and New Rochelle. Mr. Shinn claimed that the line was disputed, and the Court of Appeals found that it was. Apparently the Legislature in 1870 had defined the line between the two towns as that laid down upon the map made by Capt. Bond in the year 1711, and on file in the Town Clerk's Office in the Town of New Rochelle, and as laid down on a copy of said map made by James Davenport in 1798, and now on file in the office of the State Engineer and Surveyor. In 1872 Engineers had been employed to locate the line and their work resulted in a line which was acquiesced in until the autumn of 1897, when the Town Board of Pelham petitioned the Board of Supervisors, through Mr. Shinn, to locate the boundary line in question. The Board of Supervisors selected the Bond map, but it appeared that the Engineer who had worked in 1872 did not consult the Davenport map. The Bond map had been filed in New Rochelle and the Davenport map had been filed in Albany. The Bond map was lost some time after 1870. At the time it was last seen it was torn and patched on the back and repaired in several places, and it was difficult to tell from it upon what scale the map had been drawn. That was the principal objection made by Govers. Govers claimed that there was no dispute because the 1870 law referred not only to the Bond map but also to the Davenport map, and if the Davenport map had been examined it would have shown the exact line. The Court of Appeals sustained the action of the Board of Supervisors in fixing the line. 

'In 1927 the Board of Supervisors passed another act, pursuant to section 37 of the County Law, defining the line by metes and bounds. That act, which appears in the appendix to the Laws of 192 9, page 1773, shows that the line as there defined runs from the New Haven Railroad tracks to the Boston Post Road. The exact line is given in that act, and it seems to follow a map made by John F. Fairchild in 1898.'

Source:  Barr, Lockwood Anderson, A Brief, But Most Complete & True Account of the Settlement of the Ancient Town of Pelham Westchester County, State of New York Known One Time Well & Favourably as the Lordshipp & Manour of Pelham Also The Story of the Three Modern Villages Called The Pelhams, pp. 70-79 (The Dietz Press, Inc. 1946) (Library of Congress Control Number 47003441, Library of Congress Call Number F129.P38B3). 

Additional Resources Regarding the Boundary Dispute Between Pelham and New Rochelle

Below is the text of the May 12, 1870 New York Statute Purporting to Resolve the Boundary Dispute.

"Chap. 782.

AN ACT to establish and settle the boundary between the towns of New Rochelle and Pelham, in the county of Westchester.

PASSED MAY 12, 1870.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1.  The boundary line dividing the towns of New Rochelle and Pelham, in the county of Westchester, being the northeast boundary of Pelham, and the southwest boundary of New Rochelle, is hereby fixed, established and settled in accordance with, and as laid down upon, the map made by Captain Bond, in the year seventeen hundred and eleven, and on file in the town clerk's office in the town of New Rochelle, and as laid down on a copy of the said map made by James Davenport, in seventeen hundred and ninety-eight, and now on file in the office of the State Engineer and Surveyor.

§ 2.  This act shall take effect immediately."

Source:  Chapter 782, Laws of the State of New York Passed at the Ninety-Third Session of the Legislature, Begun January Fourth, and Ended April Twenty-Sixth, 1870 in the City of Albany, Vol. II, pp. 2010-11 (Albany, NY:  Weed, Parsons and Company, Printers, 1870).

Below is the text of a subsequent appellate judicial decision in 1900 addressing the claim of a taxpayer who attacked the boundary determination.

"(55 App. Div. 40.)

GOVERS v. BOARD OF SUP'RS OF WESTCHESTER COUNTY et al.

(Supreme Court, Appellate Division, Second Department.  November 23, 1900.)

1.  TOWNS -- ESTABLISHMENT OF BOUNDARIES -- POWERS OF BOARD OF SUPERVISORS.

Laws 1870, c. 782, provided that the boundary lines between the towns of New Rochelle and Pelham were thereby fixed in accordance with a certain designated map.  Id. c. 361, was passed later, which conferred on the board of supervisors power to fix, establish, locate, or define disputed boundary lines between the towns in their county.  This provision was re-enacted in Laws 1892, c. 686.  In 1872 the supervisors of Pelham and New Rochelle had the boundary line as established by the legislature located by surveyors.  Held, that the board of supervisors had jurisdiction of a proceeding brought in 1897 to define the correct line as established by the act of legislature, it being claimed that the line had previously been erroneously located.

2.  SAME -- REVIEW OF ACTION OF BOARD OF SUPERVISORS -- ACTION BY TAXPAYERS.

Code Civ. Proc. § 1925, providing for an action by taxpayers to prevent the waste or injury of the estate, funds, or other property of any county, town, city, or incorporated village of the county, does not authorize an action against the board of supervisors for the purpose of reviewing their decision in locating boundary lines between towns as fixed by an act of the legislature; it not being shown that there was fraud or collusion, and the board having jurisdiction of such an action.

Appeal from trial term, Westchester county.

Action by Robert Govers against the board of supervisors or Westchester county and the town of Pelham.  From a judgment in favore of defendants, plaintiff appeals.  Affirmed.

Argued before GOODRICH, P. J., AND BARTLETT, WOODWARD, HIRSCHBERG, AND JENKS, JJ.

J. Addison Young, for appellant.

Henry G. K. Heath, for respondents.

HIRSCHBERG, J.  The plaintiff, as a taxpayer of the town of New Rochelle, in Westchester county, has sued the board of supervisors of said county and the town of Pelham for the purpose of obtaining a judgment declaring null and void an act of said board passed March 16, 1896, defining the boundary line between the towns of Pelham and New Rochelle.  The action is bourght under the provisions of the act for the protection of taxpayers (chapter 531, Laws 1881, as amended by chapter 673, Laws 1887, and chapter 301, Laws 1892), and wsection 1925 of the Code of Civil Procedure, and the judgment paryed for includes the prohibition of the town of Pelham from exercising any acts of jurisdiction over about 50 acres of land which the plaintiff claims have been unlawfully taken from the town of New Rochelle and annexed to the town of Pelham by the official action of the board of supervisors complained of.  It appears that the boundary line between these towns had been in dispute for many years.  In 1870, by chapter 782 of the Laws of that year, the legislature enacted that:  

'The boundary line dividing the towns of New Rochelle and Pelham, in the county of Westchester, being the northeast boundary of Pelham, and the southwest boundary of New Rochelle, is hereby fixed, established and settled in accordance with, and as laid down upon, the map made by Captain Bond, in the year seventeen hundred and eleven, and on file in the town clerk's office in the town of New Rochelle, and as laid down on a copy of the said map made by James Davenport, in seventeen hundred and ninety-eight, and now on file in the office of the State Engineer and Surveyor.'

At the same session of the legislature and some days prior to the passage of this act, chapter 361 of the Laws of 1870 was enacted, conferring for the first time upon boards of supervisors the power 'to fix, establish, locate and define disputed boundary lines between the several towns in their respective counties, by a resolution to be duly passed by a majority of all the members elected to such board.'  This provision was re-enacted in section 36 of the county law (chapter 686, Laws 1892), under the heading 'Establishment of Disputed Lines.'  In the year 1872 the supervisors of the towns of Pelham and New Rochelle employed surveyors to run the line of the boundary as established by the legislature, and the line as located by such surveyors was marked by monuments, and a map of the survey filed in the office of the register of the county.  It was admitted on the trial that this was done under the authority and by the direction of the towns, and that the work was accepted and paid for by them.  The result arrived at by the surveyors appears to have been acquiesced in by both towns until the year 1897, when the town of Pelham objected to the line, claiming that it had been erroneously located, and applied, under section 36 of the county law, to the board of supervisors bearing on the question of the true location of the boundary ine as laid down on Captain Bond's map and James Davenport's copy.  It was conceded that the surveyors acting for the towns had not seen or used the Davenport copy in any way, and, if the result reached by the board of supervisors in adopting a different line from that of these surveyors were the subject of review upon the merits, the action of the board would be found to be supported by the adequate proof.

The appellant insists, however, that the action of the board was wholly without jurisdiction, and this claim is based on the contention that the special act of the legislature establishing the boundary line in question repealed pro tanto the power previously conferred upon supervisors to fix disputed boundary lines, and that section 36 of the county law was but a continuation of the prior law as so qualifiedly repealed, and not a new enactment.  If there is any repeal of the act conferring the power upon supervisors to deine the disputed line, it must be implication resulting from a conflict or inconsistency.  But there is no inconsistency involved.  The act of the legislature establishing and settling the boundary line between the two towns did not purport to locate the line, or to declare its bounds, courses, and monuments.  It fixed, established, and settled the line in accordance with certain maps, but it did not determine the actual physical location which would be in accordance with such maps.  If that location was in dispute, -- that is, if there was a dispute as to where the ine laid down on those maps actually ran, -- the power remained in the board of supervisors to 'locate and define' it, by virtue of chapter 361 of the Laws of 1870, although they could only 'locate and define' it as established and settled by the special act.   And in the exercise of this power the board was required to adopt a resolution which should contain 'the courses, distances and fixed monuments specified in such boundary line or lines, together with a map or survey thereof, with the courses, distances and fixed monuments referred to therein plainly and distinctly marked and indicated thereon.'  The location of the line in question undoubtedly required the exercise of skill and the examination of evidence in addition to that afforded by the maps in order to determine its whereabouts, and it would seem that, instead of being without jurisdiction because of conflict or inconsistency, the action of the board of supervisors was a necessary supplement to the act of the legislature, without which the latter would have been destitute of practical efficiency.

Having jurisdiction in the premises, and having acted in its exercise in good faith, without fraud or collusion, the conclusion reached by the board is not subject to review by the court in this action.  If the action of the board is to be regarded as judicial in its nature, it could not be reviewed, except through the operation of some appropriate writ of review.  If the action was legislative, as the appellant contends, then it was not such legislation as is within the contemplation of the taxpayers' act and section 1925 of the Code.  In view of the adoption of a line by the towns in 1872, the action of the board in substituting a different line may have been unwise or even erroneous; but it would not be illegal within the meaning of the taxpayers' act, nor would the transfer of 50 acres of land from the town of New Rochelle to the town of Pelham, under the circumstances disclosed by the record, free from any taint of fraud, collusion, or corruption, constitute waste or injury to, or of the property of, the former town, within the meaning of that act or of the Code.  In Talcott v. City of Buffalo, 125 N. Y. 280, 26 N. E. 263, it was held that the right of a taxpayer to sue public officers pursuant to the legislation designed to prevent illegal official acts or the waste of public funds is confined to cases 'where the acts complained of are without power, or where corruption, fraud, or bad faith amounting to fraud, is charged.'  In Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. 471, it was declared that the suit authorized by section 1925 of the Code is one which a taxpayer may bring against a public officer 'because of some fraud or bad faith on his part, or to restrain some illegal action.'  See, also, Osterhoudt v. Rigney, 98 N. Y. 222, where it was held that an excessive allowance by a board of town audit in a case within its jurisdiction, and in the absence of fraud or collusion, does not constitute waste or injury to the property of the town, within the meaning of the taxpayers' act, and that an erroneous conclusion cannot be reviewed in the action authorized by such act.  The appellant cites People ex rel. Trustees of Village of Jamaica v. Board of Sup'rs of Queens Co., 131 N. Y. 468, 30 N. E. 488, and People ex rel. O'Connor v. Same, 153 N. Y. 370, 47 N. E. 790, as authorities for the maintenance of this action.  In the former case, the action of the supervisors providing for the raising of $400,000 by bonding the town was assailed as illegal and unauthorized by law, and was unquestionably within the mischief which the taxpayers' act was designed to remedy.  In the O'Connor Case the action of the board of supervisors complained of was in establishing a fire district in a town; and, while the court intimated that a taxpayers' action was the appropriate remedy for a review of the proceedings, it was manifest that the validity of the action of the board was attacked by the relator.  It was an official act, which was inherently illegal, and not merely erroneous, because of errors of judgment.  In the case at bar the action of the board of supervisors was not invalid, illegal, or without jurisdiction.  It was free from fraud, collusion, or corruption, and resulted in no waste of public funds or property, and no error of judgment on the part of the board in arriving at its determination, if any existed, can be made the subject of review in a taxpayers' action.  The judgment should be affirmed.

Judgment affirmed, with costs.  All concur."

Source:  Govers v. Board of Supervisors of Westchester County, et al., 55 App. Div. 40 (2d Dep't, 1900), aff'd, 171 N.Y. 403 (N.Y., 1902).

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