121 Minn. 189 | Minn. | 1913
This is an action to determine the boundary line between the north •§ and the south of section 1, township 160, range 44, in Eoseau county. From a judgment determining the boundary line,, the defendant appeals.
The controvery is as to the east quarter comer and the west quarter corner of section 1, township 160, range 44. The north line of township 160 is the fifteenth standard parallel, and therefore a correction line.
The field notes, for a quarter corner on the east line, call for a “post 4 ft. long, 2x3 ins., 1 ft. in ground with charred stake N., in mound of earth 4¿ x 4-J x 2 ft., with pits 1-|- x 1-J x 1 ft., 6 ft. dist., for quarter sec. cor.” There is a like call for the quarter corner on the west line.
There is no evidence that any one ever saw either of these quarter comers. There is now no physical evidence on the ground of their
The appellant seeks to establish the location of the two quarter comers, at the point which he claims, 40 chains north of the southeast comer, by showing the location of certain quarter corners and section comers to the east and west of section 1, which are located in harmony with his claim of the proper location of the two quarter corners in dispute, and by showing something like a practical construction in harmony with his claim by owners and occupants to the east and west, and by showing a correspondence of magnetic variations from a point 160 rods north of the southwest corner of section 1 with magnetic variations from certain known corners. The field notes, other than of section 1, are not in evidence. Conceding the competency of all of appellant’s evidence, the case made at most left it a question of fact whether the quarter comers were lost corners, and the trial court’s finding is supported by the evidence.
The appellant complains of the finding that the two quarter corners were never made or ascertained. Conceding the inconsistency of the finding, the appellant is not harmed. We have proceeded upon the assumption that the court found that the quarter corners; are lost, and have reviewed that finding, and base our decision upon it.
The quarter corners being lost, and the field notes being inconsistent, so that the boundary cannot be fixed by adopting the field notes distances and measuring between the known north section comers-
When the actual distance is variant from the field notes distance between the two section corners, and the intervening quarter corner is lost, it is not assumed that the error is in one portion of the line .and not in the other, but the loss is proportionally divided. The rule stated is adopted and applied in Wetle v. Flegel, 112 Minn. 445, 128 N. W. 577, and in other cases. The court adopted and correctly applied this rule.
Judgment affirmed.