139 N.W. 330 | S.D. | 1913
Plaintiff and defendant are, respectively, the owners of the N. W. 1-4 of section 13 and the S. W. 1-4 of section 12 of a certain township situate in Brookings county, S. D. Plaintiff brought this action to determine the ownership of a triangular piece of land which forms a part of the half section owned by these parties. Plaintiff claims ownership in this tract by virtue of 20 years’ continuous possession thereof. He also claims ownership by virtue of patent from the United States government. Outside of the question of ownership through 20 years’ possession, the ownership of this tract of land depends entirely upon the true location of the quarter corner common to these two quarters. The case was tried as a law case. The jury returned a general verdict for defendant. The court entered judgment in favor of defendant. Motion for new trial was denied, and plaintiff has appealed from such judgment and order.
The record discloses numerous assignments of error based upon the rulings of the court receiving and rejecting evidence. We have carefully examined this record, and do not believe there is any reversible error in such rulings. Appellant has specified numerous particulars wherein it is claimed that the evidence failed to sustain the verdict. After a full consideration of the evidence in connection with the instructions given by the court, we are of the opinion that, under such instructions, the evidence supported the verdict. The only question left for our consideration is whether or not the court erred in the giving of one certain instruction upon request of respondent, and in refusing to give two instructions requested by appellant.. In order to properly pass upon such instructions, it is necessary to call attention, in a general way, to what the evidence showed. It appears that this part of the state was settled about the year 1880; that from the time of early settlement on for a number of years the section road between sections 12 and 13 ran close to the point claimed by appellant as the quarter corner; that at the point claimed by appellant there was a mound which several witnesses claimed to be the original government mound marking the disputed corner; that several years, ago such mound was by the township supervisors recognized as marking such corner and a stone was placed there
The court gave the following instructions requested by appellant :
“Instruction 1. You are instructed that it is your duty to as-certan if possible from the evidence 'before you, the corner as indicated by the government monuments and mounds established by the government surveyor, if any, and if you find 'from the evidence that the quarter section corner contended for by the plaintiff, as being located about 30 feet west and 100 feet north- of a certain rock, set by one Wescott, a surveyor, is the old government corner as located by the government surveyor, you will find-for the plaintiff on all issues.
“Instruction 2. You -are instructed that, if you find from the evidence the actual location of the corner as located by the government surveyor, this location must prevail and control, although it may not correspond with the calls .in the field notes.
“Instruction 3. You are instructed that upon the issues of the location of .a government corner or line you may consider the -evidence of witnesses who claim to have knowledge of -the original mounds made by the government surveyor, as well as all other evidence, such as the location of the highway, the construction of fences, ¡the location of trees, ditches, -or furrows -which may have*629 been in existence for a long period of time, as well as the surveys that have been made.”
■ The court refused the followng instruction requested by appellant: “Instruction 4. You are instructed that, if you find from the preponderance of the evidence where the original government monument and mounds were located, it will 'be your duty to establish the boundary accordingly, in preference to ascertaining the boundary -line by courses, distances, and calls of the government surveyor’s report.”
The court gave the following instruction asked for by respondent: “Instruction 1. You are instructed that, while unquestioned government monuments will control over courses, and distances, yet you are further instructed that this -does not apply where the evidences of an alleged government monument are doubtful or uncertain, and the rule is that monuments will control courses and distances only in case that such boundaries are fixed and known, and unquestioned monuments exist,' and that where the boundary is not fixed and known, and the location of the monuments themselves is uncertain or left in doubt by the evidence, then courses and distances will be considered in fixing the boundaries, and the government field notes will control in deter-mning the location of such uncertain, doubtful, or lost corner." The original record shows this instruction duly excepted to.
The court of its own motion gave the following instruction: “A lost corner is one whose position cannot be determined 'beyond a reasonable doubt, either from the original marks or reliable external evidence. You will notice that a corner may be obliterated, and not yet lost. If its location has .'been preserved, beyond all questions, by acts of landowners and by the memory of those who know and recollect the true situs of the original monument which marked it, then it is not lost, though obliterated. If, therefore, you find that the corner in question at the time Surveyor Wescott made his survey was an obliterated corner, one where no visible evidence remained of the work of the original surveyor in establishing it, but also find that its locaton had been preserved beyond all question by acts of landowners and by the memory of those who know and recollect the true situs of the original monument, then it was not a lost corner. If, however, at the time that Survej-or Wescott made his survey, the original mound, stake,
Sections 923 and 926 of the Political Code of this state read: “.Sec. 293. The resurvey and subdivision of lands by all surveyors shall be according to the laws of the United States and the instructions issued by the officers thereof in charge of the public land surveys, in all respects. * * *
Under the instructions -to surveyors issued by the United States government, as proved upon -the trial herein, “a lost corner is one whose position cannot be determined 'beyond reasonable doubt, either from the original marks or reliable external evidence.” It must be borne in mind in this case that .appellant.wa$ contending, and his evidence tended to show, that the corner was. not only not” lost, but not even entirely obliterated. If the jury should believe his witnesses, and, believing same, should find that the mound testified to by them was the original government mound, then its location was fixed “beyond a reasonable doubt” and “beyond all question,” as stated in the instruction given by the court on .its own motion. A careful reading of the court’s own instructions shows .that under such instructions the jury might find from a preponderance of the evidence that' the mound claimed by appellant was the original government mound, and, if they so found, that then their verdict would have been for appellant because the location of such mound1 was absolutely undisputed. To this instruction appellant did not except, and it became the law of the case. But the instruction excepted to laid down a different rule. Under 'such instruction, it was necessary that the mound claimed -by appellant as the government mound should be “unquestioned” or unchallenged before such mound - would control over courses' and distances. Under -such instruction, the jurv, before it could render verdict for appellant, must have found —not that the identity of this mound as the government mound was proven -to its satisfaction by a fair preponderance of the evidence, or even beyond a reasonable doubt, but that its being such, government mound was not even questioned by any evidence of the case. It will be noted that, under the instructions 'of the federal government, it is the “position” of the corner that must be established beyond a reasonable doubt by the surveyor. This is exactly in line with the instruction given by the court of its own
The judgment and order appealed from are reversed.