176 Iowa 96 | Iowa | 1916
The principal corner over which this litigation has arisen is the common corner of Sections 7, 8, 17 and 18, Township 100, Range 34, in Emmet County. Plaintiff owns the north half of Section 18, and the defendants (except Emmet County) own, respectively, other tracts of land affected in some degree by the location of that corner. The county is made a party because of the fact that a public road is laid east and west along the line between Sections 7 and 18, and another road is also laid north and south between Sections 18 and 17. On the petition of plaintiff, a commissioner was appointed to make a survey, locate the corner and report his findings to the court. The defendants appeared to the proceeding, denied the plaintiff’s claim that the corner was located elsewhere than at the point indicated by the present occupation and use of the lands at that point, and alleged that the corners and lines as claimed by them had been recognized and acquiesced in by all the adjacent owners for more than 10 years. The commissioner made the survey and heard evidence as to the location of the ancient monuments, .as well as of facts bearing upon the question of acquiescence, and reported to the court in substance that, while a present survey retracing the lines according to the government field notes from other acknowledged corners would indicate the true original location of the disputed common corner to be north and east of the spot claimed by the defendants, yet such spot had been acquiesced in by all the owners of land affected by such location as the true corner, and that such owners had adjusted their lines, fences and improvements with reference thereto for more than 15 years, and such practical location should be considered established by acquiescence, without regard to the variations therefrom which might be developed by a strict technical survey, according to such data of the original measurements as are now obtainable. Exceptions being taken to this report, a trial thereon was had to the court, which disapproved the finding of the commissioner that the corner and. lines had been established by acquiescence,
It is the theory of appellants that this testimony of the witness Holm was quite influential in determining the result of the trial. They further say that the production of the evidence of this witness was a surprise to them, and that their opportunity to investigate the facts and rebut the testimony was very limited and insufficient to permit the same to be done in time for use in such trial or in time for filing the ordinary nfotion for new trial; that, immediately after said trial, they did investigate diligently, and thereby discovered with reasonable certainty that Holm was mistaken in suppos
That most of the new evidence proposed by the defendants is of a material character, we cannot doubt, and that they fairly purge themselves of negligence or want of diligence in its discovery, we think clear. While we cannot know for a certainty what effect the evidence of Holm had upon the finding of the court, or whether, without such evidence, the judgment would have been different, it was of a character which may have been decisive of the result. Without his testimony, if we may judge from a reading of the record, the apparent preponderance of the evidence, if not clearly in favor of the defendants, was, to say the least, wavering in an uncertain balance. When, therefore, with something of dramatic effect, the story of this evidently honest and conscientious old man, attested by the grave of his dead child, was thrown into the scale near the close of the trial, it may well have served to tip the beam in plaintiff’s favor. It seems very certain, however, that Holm staked the correctness of his identification of the section line wholly upon his discovery of what he supposed to be the grave. The 40 odd years which had intervened had naturally dimmed his memory, and had also destroyed or removed all
Taking the record as a whole, we are of the opinion that justice will be more nearly obtained by granting the petition, and the ruling appealed from will be reversed and cause remanded, with directions to sustain the petition and set the cause for retrial. — Reversed and Remanded.