4 S.D. 358 | S.D. | 1893
This was an action brought by the plaintiff to enjoin the defendants, supervisors of Red Rock township, from opening a highway on the townihip line between Red Rock and Brandon townships on a line established by Mr. Van Antwerp, deputy county surveyor of Minnehaha county, in 1889. The plaintiff is the owner of the E. i of the N. W. \ and the N. W. i of the N. W. i of section 7, Red Rock township, and the E. % of the N. É. i of section 12, Brandon township. The case was tried by the court without a jury, and findings of fact made, and judgment rendered in favor of the defendants. A motion for a new trial was made and overruled, and from the judgment and order the plaintiff appeals. Numerous errors are assigned but, in the view we take of the case, it will only be necessary to pass upon the question as to whether or not the findings of the court are against the weight of the evidence. Randall v. Burk Twp. 4 S. D. 337, 57 N. W. Rep. 4. For a more full understanding of the points involved, we have annexed a diagram showing the township line as surveyed by Mr. Van Antwerp, deputy county surveyor of Minnehaha county, and the line as claimed by the plaintiff:
It will be noticed that the plaintiff owns land on both sides of the township line between Red Rock and Brandon townships. The plaintiff and appellant contends that the line indicated by letters x, y and z is the original township line between a’ and B, instead of the line A, B, which represents the Yan Antwerp survey. The line in controversy is the north and south town line between the townships of Red Rock and Brandon. As we un
It appears by the evidence that the exterior lines of the township of Red Rock were originally surveyed by the government surveyor in 1864, and the township subdivied about the same time. It further appears that the plaintiff settled upon his land in the spring of 1872. On the trial the plaintiff introduced a number of witnesses who gave evidence tending to prove that as early as 1872 they saw a mound, pits, and stake, indicating that point z was the N. E. corner of section 12, Brandon township, and the N. W. corner of section 7, Red Rock township; also, evidence tending to prove that they sawinl873 and subsequently, up to 1876, a mound, pits, and a stake at each of the points x and y, one and two miles southerly from z. There was also evidence of an old road claimed to be a town road by plaintiff’s witnesses, running along the line x, y, and thence to the town line as established by the Van Antwerp survey at a point northerly from z. When this road was first used does not clearly appear, but from the evidence it would seem to have been about 1875 or 1876. The defendants introduced a
Section 2395, Rev. St. U. S., pi’ovides as follows: “The public lands shall be divided by north and south lines run according to the true meridian, and by others crossing them at right angles, so as to form townships of six miles square, unless where the lines of an Indian reservation, or of tracts of land heretofore sum eyed or patented, or the course of navigable rivers, may render this impracticable; and in that case this rule must be departed from no further than such particular circumstances require.” It is quite clear from the provisions of this section, that all township lines are required to be straight lines connecting the township corners, and that all section and quarter section corners established by the government surveyor in
In the case at bar, not only would the surveyor be required to presume marked errors in the original government survey, but he would be required to disregard the government field notes as to courses and distances, and to give undue weight to partial and doubtful appearances or evidence of monuments, in order to adopt the line claimed by the plaintiff as the township line. At points x and y the surveyor says he found nothing to indicate the existence of government mounds, and, as we have seen, whatever there had been to indicate such mounds had been distroyed in 1876. At z, he says he found nothing except
The court was speaking of an east and west township line, but, of course, the same principles apply to a north and south line. If such would be the rule as applied to section and quarter section corners established upon town lines, for much stronger reasons should the rule apply in re-establishing the township line itself. Therefore, upon the evidence in this case, we are of the opinion that the court properly found that the line A, B, as es
Counsel for appellant contends that the evidence of Mr. "Vause quite conclusively establishes the fact that the line contended for by the appellant is the one indicated in the government field notes, as shown by the incidental calls therein. There is some force in this contention. Going north from corner common to sections 24, 13, 18, and 19, the field notes say: “North along the east boundary line of section 13, variation 12 degrees 40 minutes east, at 23 chains, dry run, 20 links wide, bears west; at 33 chains, dry run, 12 links wide, bears southwest, and unites with the last mentioned run. ” Mr. Vause testified that measuring on the line a’, x, y, the distances corresponded with the calls in the field notes to these two runs, but that measuring on the Van Antwerp line, a’ to B, the distances do not correspond with the field notes, and that the two runs come together some distance easterly of the Van Antwerp line, instead of westerly of the same, making only one run crossed by that line. But it will be noticed that the calls are incidental calls, in passing, and not locative calls, and that, to give effect to such calls, the courses indicated in the field notes must be disregarded. While undisputed monuments that constitute locative calls will generally control courses and distances, no such effect will ordinarily be given to incidental calls. The principle applicable to such calls is clearly stated by the supreme court of Texas in Jones v. Andrews, 9 S. W. Rep. 170. In that case, on the trial in the court below, the
Again, it is contended that the fact that Mr. Van Antwerp found no mounds, or appearances of mounds, on the line run by him from points a’ to B, a distance of four miles, except a quarter corner onerhalf mile south of point B, (about which there is some conflict in the evidence,) constitutes strong evidence against that line as the original government line. Had the original government mounds been fixed and permanent monuments, such as living trees, well-established highways, etc., there would be much force in such contention. But the absence, after many years, of mounds-of earth easily made and obliterated by any one in a prairie country, is not a very important fact to be considered in establishing the original township line. We have examined with much care the cases relied upon by counsel for appellant in support of their position, but we do not think they establish any principle inconsistent with the views we have herein expressed. It is true that in McClintock v. Rogers, 11 Ill. 279, (a leading case,) the town line was, by a resurvey, deflected from a straight line between the township corners; but an examination of the case will disclose the fact that that was done to give to parties the amount of land to which they were entitled, and that the resurvey followed undisputed permanent monuments along the line, as established by the original survey and the government field notes. We do not wish to be understood, in this case, as