149 N.W. 552 | S.D. | 1914
This action was brought to determine title to, and to recover damages for the use and occupation of, a certain tract of land situate in township 95 N., range 55 W., in Yankton county, S. D. The plaintiff, who was the owner of the N. W. l/i of section 27 in said township, claims that the tract of land in question is a part of said quarter section; while the defendant, who is the owner of the N. E. J4 °f section 28 in said township, claims that the tract of land in 'question is a part of such quarter section. The rights of the respective parties in and to said tract of land depend entirely upon the true location of the original government corner common to sections 21, 22, 27, and 28 of said township. This cause was first tried in March, 1910, being then tried as a law case. The jury returned both a general and also special verdicts in favor of the plaintiff. Appeal was taken, and in Byrne v. McKeachie, 29 S. D. 476, 137 N. W. 343, this court held that this action was equitable in its nature and remanded the cause to the trial court for such court to make findings of fact and conclusions of law herein. The trial court adopted the findings of the jury and rendered conclusions and judgment in favor of the plaintiff. From such judgment defendant has appealed.
From the evidence submitted, it appears that the interior of •said township was surveyed in November, 1863; that the first settlers came into said township in 1868 or 1869; that several of the settlers located in the early 70’s; that, in the course of time, roads were laid out, trees planted, fences built, and houses and other buildings located in reference to certain points treated as the corners of the various sections of said township; that, at different times, surveys, more or less general, have been made within the said township, and that, finally, for some reason or other, the township itself emploj’ed a party to make a survey of the interior of the whole township and to locate the corners therein. The work under this contract was done by one Van
“Where people for 20 or more-years have recognized lines as; the true boundaries throughout a whole township, there must be-most satisfactory proof that the government corners have become-absolutely ‘lost/ as distinguished from ‘obliterated/ before it will' -be allowed the township authorities or private parties to institute-a new survey and locate corners throughout a township at points-clearly not where the original corners were located.”
The Judgment is reversed.