Brown v. Dunn

135 Wis. 374 | Wis. | 1908

Dodge, J.

It is established as a general rule of law, both in our own court and in the courts of the United States, that where by the original survey and government plat a tract of land appears to have as its boundary a body of water, such body of water is a natural monument and will constitute the boundary, however distant or variant from the position indicated for it by the meander line, and hence will control as a call of the survey over either distances or quantity of land designated in the conveyance or on the government plat. Railroad Co. v. Schurmeier, 7 Wall. 272; Mitchell v. Smale, 140 U. S. 406, 414, 11 Sup. Ct. 819; Shufeldt v. Spaulding, 37 Wis. 662; Lyon v. Fairbank, 79 Wis. 455, 48 U. W. 492. This rule is subject to some exceptions, as where the lake or body of water is so remote from the premises that it cannot in reason be supposed that the plat indicates a purpose to make it the boundary of the premises; but such exception can have no restrictive effect to the present •case, where the contour of the lake shore is so nearly similar to that shown by the meander line, and where no other lands are surveyed or conveyed by tbe United States which, even by projection of their lines to the lake shore, can interfere with the projection of plaintiffs’ lines. Eor can we, as courts have done in some cases, assume either fraud in the survey or so gross a mistake in the location of the lake as to force the conclusion that the United States government did not, under the rule above stated, intend to- convey to its shore, for the reason that no such body of water as indicated existed to serve as a natural monument or boundary. See Security L. & E. Co. v. Burns, 87 Minn. 97, 91 N. W. 304;. Grant v. Hemphill, 92 Iowa, 218, 223, 59 N. W. 263, 60 N. W. 618.

Another limitation or modification of the absolutism of the rule above stated, urged upon us by the appellant, has been recognized and applied to the effect that where the meander line is drawn on one side of one of the regular survey lines, either section line, one-quarter line, or one-sixteenth line, the boundaries cannot be extended across such line in order to reach the water front, especially when such survey line appeared upon the government plats as a boundary of another lot or subdivision conveyed to some one else. Whitney v. Detroit L. Co. 78 Wis. 240, 47 N. W. 425; Lally v. Rossman, 82 Wis. 147, 51 N. W. 1132; Underwood v. Smith, 109 Wis. 334, 85 N. W. 384. Such limitation cannot have application to the present situation, for the reason that, while in some places the meander line falls south of the east and west one-sixteenth line and west of the north and south one-sixteenth line, yet at other points it confessedly is located north of the one and east of the other, thus' conclusively refuting the inference that the government intended that the lot line should be confined within either of said one-sixteenth lines. True, in running the boundary of said lot according to the present condition of the shore the surveyor must pass from the south to the north side of the line equidistant between the north and sotitb lines of the quarter-section, but the government plat makes perfectly obvious that the government surveyor did this very thing, for he included within lot 9 land lying north of that one-sixteenth line. True, he crossed it at a different place, but none the less to the effect of declaring the intent that the lot was not confined by any such line, but was intended to extend to the water front notwithstanding it. So, also, with reference to the north and south one-sixteenth line.

2. The right of plaintiffs to máintain this action is assailed upon the contention that plaintiffs were not, and • defendants were, in possession of the immediate ground in dispute. This is claimed to appear both by the complaint, which was met by demurrer, and by the evidence. The complaint as finally amended did, however, categorically allege that plaintiffs owned and were in actual possession of the land claimed and that the defendants had from time to time entered thereon and cut trees; so that obviously the demurrer, so far as it raised that objection, was properly overruled. The plaintiffs’ evidence tended to show that one of the plaintiffs had for many years resided upon the land claimed as a part of lot 9 in a dwelling house which he had built thereon and that he had cultivated parts of it, and that, while the immediate lake shore where defendants’ acts were committed had not been cultivated, it had been'treated like other parts of such land by the exercise of apparent dominion over it such as was reasonably consistent with the character of the land. The only acts claimed to show possession in any one else “were those of the defendants in undertaking to survey and plat into building lots a strip near the lake, and the entry upon the land so far as was necessary to run the lines, drive stakes, and to cut brush to enable such acts; the defendants at all times occupying their lot 1 in the very northeast corner of the southeast quarter of section 32 on the other side of the lake, which was quite-narrow at the point in question. In view of this evidence we are persuaded that the findings of the court are fully sustained to the effect that the plaintiffs were in possession claiming title and that the acts of the defendants were in the nature of temporary trespasses and •did not interrupt such possession.

We therefore conclude that the judgment awarding to plaintiffs all of the premises south and west of the lake which fall within the exterior boundaries of the southeast quarter ■of section 32 was correct.

By the Gourt. — Judgment affirmed.