126 P. 774 | Idaho | 1912
This is an action to quiet title to a strip of land bordering on the side of the southeast quarter of the southeast quarter of section 36, township 10 north, of range 5 west of Boise meridian, in Washington county. Said strip of land is eighteen feet in width at the east end and commences at the southeast corner of said forty-acre tract and extends west about a thousand feet to the east
The cause was tried by the court without a jury and judgment entered in favor of the defendant, quieting his title to said land. The plaintiff, who is appellant here, interposed a motion for a new trial, which was overruled by the court. He thereupon appealed from the judgment and said order.
The plaintiff’s contentions were that there never was or that there never had been discovered a quarter corner stake for said section; that said corner was a lost corner and that it should be established at the midway point between the southwest and northwest corners of said section, and that if the corner was so established, said strip of land would be a part of the southwest quarter of the northwest quarter of said section, which is owned by the plaintiff.
Defendant’s contentions were that in the year 1909, a little more than two years prior to the commencement of this action, said quarter corner was only an obliterated corner, and that at that time it was re-established by a surveyor by the name of Lattig, at a point twenty-sis feet north of said midway point, and that if that were the true corner, said strip of land would be a part of the northwest quarter of the southwest quarter of said section, which is owned by defendant. The defendant also claimed title to said strip of land by adverse possession.
The court found in favor of the defendant on both of his said contentions, to wit, on the ground of adverse possession and that said strip was a part of said northwest quarter of the southwest quarter of said section, and that it belonged to said forty-acre tract as a part of the original survey of said section made by the United States government.
It will be observed from the foregoing statement that the question involved in this action is the correct location of the quarter corner on the west side of said section 36, and involves the question of whether said corner is a lost corner or an obliterated corner. Sec. 2095, Rev. Codes, provides,
A lost corner is 'defined as follows: “A lost corner is one whose position cannot be determined, beyond reasonable doubt, either from original marks or reliable marks or reliable external evidence.”
Now, if the evidence establishes the fact that said corner is an obliterated corner, then the judgment of the trial court must be affirmed; but if it establishes the fact that said corner is. a lost corner, then the judgment of the court must be reversed and the case remanded, with instructions to establish the corner midway between the southwest and northwest corners of said section.
It is clear from a review of all the evidence that said corner is an obliterated corner and not a lost one. The field-notes of the government original survey show that a willow stake was set at said corner with charcoal at the bottom thereof, and that said corner was established in the manner followed by the government in establishing such corners. Witness Utter, who is a surveyor of unquestioned standing and reputation in the state and has been appointed surveyor general of the United States for the state of Idaho and has held that position for some time, was employed to establish said corner. He testified in establishing same he found a willow stake on the ground, and right near where he found
Witness Lattig, who was also a surveyor and civil engineer, was employed to find said corner about two years prior to the trial of this ease. At the point where General Utter found said corner, Lattig dug down ten or twelve inches in the ground and found some charcoal there. This was the same point witness Carroll showed Lesh and Wood when he sold them their lands at different times and stated to them it was the quarter section corner. The testimony of Utter, Lattig and the row of trees standing substantially in that line, and other evidence is sufficient to sustain the findings of the court in quieting the title to said land in the defendant, and to show that said corner was an obliterated corner and not a lost corner.
It also appears from the evidence that the parties who built a fence along that line in 1885 put their fence very close to the line; and Parker, a railroad' engineer, and Marietta, a local land surveyor, marked said corner as the quarter corner. All of these facts, and the further fact that for over thirty years said point was treated as the correct corner by
The court also found that the defendant for more than nine years last past had been in possession of the strip of land in dispute, and that during said period he had paid all taxes legally assessed against his interest in the forty-acre tract to which said strip of land belonged.
We are satisfied from all of the evidence that the judgment of the trial court quieting the title in said strip of land in the defendant must be affirmed, and it is so ordered, with costs of this appeal in favor of the respondent.