42 Iowa 411 | Iowa | 1876
I. The parties are owners in severalty of adjacent tracts of land in Sec. 7, Tp. 94 N., R. 5 W., in Clayton county. The controversy in this suit is based upon their conflicting claims as to the division line between their lands. The plaintiffs, who own the south tract of land, maintain that the division line is 2.20 chains north of the line claimed by defendant. In support of their claim, plaintiffs introduced the plat of the land as found upon the records of the county, which, it is claimed, shows that the section corners of Tp. 94-5, upon the township line, are not the same as the section corners of the township adjoining on the west — 94-6—on the same townshij) line, but are north of the last named — -that of Sec. 7 (the N. W. corner) being 2.20 chains north of the N. E. corner of Sec. 12, Tp. 94 N., R. 6 W. A surveyor testified that the plat found among the county records shows these facts, and that, taking the corners as established thereby, the land in controversy is a part of the land owned by plaintiffs. Defendant introduced a surveyor who testified that, in his opinion, the county plat in evidence does not show the fact claimed to be established by it, and that certain figures and lines found thereon, which the other party claims establishes the corners, ought not to be so understood, but he was unable to explain the meaning of the figures. Ilis survey, taking the corners of the respective townships upon the township line to be at the same point, fixed the line of defendant’s land so as to include in his tract the property in dispute. There was thus a conflict of evidence in the case wholly arising upon the question whether the sections of the two townships bounded by the township line have common corners thereon. The referee in this conflict found for plaintiffs.
II. That the evidence newly discovered is material and primary, and not in its nature cumulative, we think, cannot be doubted. It tends to overthrow the secondary evidence— the county records of the survey of the land, upon which plaintiffs’ claim to the land is based.
III. Defendant is not chargeable with negligence in failing to make the discovery of the evidence before the trial. He was authorized to rely upon the copies of the surveys found in the county offices as correct, and upon the evidence introduced by him to establish that they did not show double corners upon the township line, and to trust the decision of his case thereon.
We are unable to understand the importance attached by the court to the production of these instructions, or that, if
In our opinion the petition for a new trial ought to have been sustained. The judgment of the District Court is reversed and the cause remanded for further proceedings in harmony with this opinion.
Reversed.