Dickinson v. Smith, 134 Wis. 6

134 Wis. 6 | Wis. | 1907

TimliN, J.

The original survey and plat of Lawesburg-must control the location of the boundary between the parties. The starting point of this survey and for any resurvey thereof is definitely described and easily located. The section line between sections 25 and 26 is' a known north and south line running through blocks 3, 6, 11, and 13 of Lawe’s plat near their eastern end as displayed on Stephens’ map. A point on the Eox river and forty-three rods and ten feet west of this section line is easily located and forms a definite starting point, and from this point we run north to find the west line of the plat and the center of Division street, now Union street; but the defendants offered no proof of any resurvey, confining their defense in this particular to criticism of the Edwards survey based on the Stephens survey and map of 1872 and put in evidence by the plaintiff.. The question relative to the location of this boundary was submitted to the jury and answered in the following form:

“Is the strip of land which is the subject of this action a part of lot 3, block H, of the Lawesburg plat in the city of Appleton, according to John Stephens’ map of said city? A. No”

Bearing in mind that said lot 3 was used to indicate the defendants’ land, we have in an ejectment action, where the plaintiff should recover, if at all, on the strength of his own title and not on the weakness of his adversary’s title, a finding merely that the disputed strip did not belong to the defendants, without finding whether or not it belonged to the plaintiff. The scope of this finding is still further limited in that it only finds that the disputed strip was not part of lot 3 according to “John Stephens’ ” map; This is merely to find that John Stephens did not so represent things on his map. The verdict in this respect is defective and inconclusive. The form of verdict in ejectment is prescribed by statute; Sec. 3084, Stats. (1898). But the court supplemented this verdict with its finding purporting to have been based upon undisputed evidence and to the effect that the plaintiff was the owner in fee simple of the premises described in the complaint and of the whole thereof and entitled to the immediate possession, and that the defendants unlawfully withheld possession thereof. There is also a finding describing the stakes or marks set to indicate the true’boundary between the parties. If, therefore, notwithstanding the failure to locate the boundary in question according to the lines of the original plat of Lawesburg and notwithstanding the indefiniteness of the verdict there was competent nncontroverted evidence showing a 'prima facie right of recovery in the plaintiff, all other errors assigned by appellants become immaterial and the judgment must be affirmed.

So far as paper title is concerned, we must hold that the plaintiff made a prima facie title to lot 1, block H. Some ambiguity inheres in the deed of May 12, 1882, from Miles to Story found in plaintiff’s chain of title, but that deed bears date and was recorded more than twenty years prior to the commencement of this action, and subsequent deeds in plaintiff’s chain of title from the grantee, Story, and down to the plaintiff, containing unmistakable descriptions, serve to clear up this ambiguity, if it can be considered an ambiguity. Besides, deeds from the heirs of Story to plaintiff were properly in evidence, although executed since the commencement of this action, because apparently executed for the purpose of clearing up the alleged ambiguity in the said deed of May 12, 1882. Hutchinson v. C. & N. W. R. Co. 41 Wis. 541. We must therefore hold that the plaintiff showed a prima facie title to lot 1 in block H.

Next it is uncontroverted that lot 1 in block H, according to.Stephens’ map, represents lot 12 and the east eight feet of lot 11, all in block 12 of the original plat of Lawesburg. But it required something more than this in order to show that the description last mentioned included the strip of land in dispute. Upon this last point the plaintiff offered evidence of a survey by one Edwards based upon the Stephens survey, plat, and monuments, and also offered in evidence a copy of the Stephens plat or map. By sec. 15, ch. 387, P. & L. Laws of 1870, the common council of the city of Appleton was empowered by resolution duly passed and entered on its minutes to authorize the city surveyor, or such assistant surveyor as they might appoint, to make a new and accurate survey of the lines and boundaries of all the streets, alleys, avenues, highways, public grounds, wharves, docks, blocks, and lots, establishing sucb permanent landmarks in each ward or in anyone ward, as the common council might require. The council was further empowered to cause an accurate map or maps, plat or plats, of such survey to be made and certified to by the surveyor or assistant surveyor, which map or plat should have the approval of the common council indorsed thereon by the city clerk with the corporate seal of the city attached. This map was required to be filed in the office of the city clerk and an attested copy thereof filed and recorded in the office of the register of deeds of Outagamie county. The law then provided that “such survey and'landmarks when so established and recorded shall be prima facie evidence in all courts and places of the facts therein set forth.” This law was in force in 1812 when the Stephens survey and plat was made, and this law later became sec. 15, subch. XI, ch. 441, Laws of 1885 (vol. 2), entitled “An act relating to the city ■of Appleton, and codifying, consolidating and amending the act of incorporation, and all acts amendatory thereof,” ■etc., The Stephens survey and plat were made and the Stephens landmarks set in place apparently in attempted compliance with this law.

If the admissibility of the Stephens plat and survey depended alone upon sec. 15, ch. 387, P. & L. Laws of 1870, it would probably be necessary to prove a prior resolution of the common council authorizing it and authorizing the establishment of permanent landmarks. But the plat and survey certificates and records being more than thirty years old were what is known in the law as an ancient document, and purported to bear the approval of the common council over the signature of the city clerk, and to be sealed with the seal of the city as required by the statute above referred to. This last certificate was authorized only in case of a survey and map made pursuant to a preliminary authorization by the common council, hence affords proof presumptive in the case of an ancient document that such authorization had taken place. Randall v. Rovelstad, 105 Wis. 410, 424, 81 N. W. 819, and cases cited; 3 Wigmore, Ev. § 2138 et seq.; Whitman v. Shaw, 166 Mass. 451, 44 N. E. 333; Goodwin v. Jack, 62 Me. 414; St. Louis Public Schools v. Erskine, 31 Mo. 110; Gibson v. Poor, 21 N. H. 440; Whitekhuse v. Bickford, 29 N. H. 471. The Stephens map with its annexed certificates was deposited in the office of the register of deeds of Outagamie county in 1872, as shown hy the entries in the reception index, hut was merely attached to one of the pages of a plat hook of that office and has long since been worn out and lost. ETo proceedings under sec. 661 d, Stats. (1898), to re-establish this plat appear to have been taken. Whether it was filed in the office of the city clerk does not appear, but it does appear that Stephens made such survey and plat and that he set monuments or landmarks, and that copies or prints of such plat made by Stephens were in use, one of them in the office of the register of deeds of Outagamie county, and this copy was offered in evidence. It therefore comes from the custody of the register of deeds, is in common and general use and publicly recognized as a true copy of the John Stephens plat, and the copy itself is apparently of the same age as the original, and is rather a print made by the process of map-making then in vogue than a copy. It was properly received in evidence after proof of the loss of the original. Dodge v. Briggs, 27 Fed. 160; Price v. Woodhouse, 3 Exch. 616; Tucker v. Wilkins, 4 Sim. 241; Smith v. Cavitt, 20 Tex. Civ. App. 558, 50 S. W. 167; Gibson v. Poor, 21 N. H. 440, 447. The certificate by John Stephens to his map states that the survey and plat is correct or nearly so. We do not think this can be held to destroy the effect given by statute to this survey as prima facie evidence. The subject matter of the certificate must be considered. In the field mathematical accuracy in surveys or resurveys is generally unattainable. The landmarks established by Stephens and identified by Edwards must by force of this statute be considered. correct monuments properly located nntil tbe contrary is shown. By giving tbe Stephens plat, survey, and landmarks this legal quality, tbe Edwards survey based thereon made a prima facie case for recovery by the plaintiff, and in tbe absence of any countervailing evidence on tbe part of tbe defendant tbe circuit court was right in finding for the plaintiff.

By the Court. — Tbe judgment of tbe circuit court is affirmed.