71 Ind. 44 | Ind. | 1880
This was an action by Lucy Herbst, Charles Herbst and John Herbst, against the appellee, to recover a piece of land describe 1 as a strip of land six poles in width off the south side of the north-east quarter of the south-west quarter of section 16, township one (1) south, of range six (6) east, in Clark county, Indiana, containing two and % acres.
Trial by the court; finding and judgment for the defendant. New trial refused.
John Herbst, the elder, died seized of the quarter quarter section above described, leaving his widow, Lucy Herbst, and John Herbst and Charles Herbst, his children, and two other children, who have since conveyed their interest in the land to Charles Herbst.
The defendant is the owner of the south-east quarter of the south-west quarter of the same section, which, as will be seen, lies immediately south of, and adjoining, that owned by the plaintiffs; and the controversy is as to the boundary line between the two tracts, the plaintiffs claiming that the true boundary gives them the strip of land in dispute, and the defendant that the true boundary gives it to him.
It was proved on the trial, that, in the year 1853, one
The defendant gave the following ■ testimony in respect to the survey of Earris, and the building of the fence, etc.
William W. Earris testified: “ I saw the stone at the
Peter Smith testified : “ I was present ■ at the building of the fence between Charles Herbst and my father, the defendant. The fence was put where Farris ran the line. The plaintiff Charles Herbst was present when the line was run. Charles Herbst said: ‘ Put the fence on the line.’ • Charles helped to. pay for that survey. The defendant has been in possession ever since.”
Nicholas Robbins testified: “ The plaintiff Charles Herbst, defendant Smith, and I agreed to have Dr. Farris make a survey. Charles Herbst was present at the survey. The fence was put on the Farris line. * * * * I hold now to the Lyon’s line. The Farris survey was made on the Lyon’s line. Charles Herbst helped to pay the expense of running that line.”
Mathias Engle testified : “ I was present at the Farris survey. Charles Herbst was there. There was a dispute about the McDaniel and Lyon’s line, and we all agreed to have Farris run a line we could stand to. I think Farris ran his line on the Lyon’s line. • All were satisfied then with the Farris survey.”
Charles Herbst testified, in rebuttal, that “ No corner was established by 'William W. Farris when he made the survey spoken of by the defendant’s witnesses.”
It is claimed by counsel for the appellants, that, on these facts, the liue called the McDaniel line must be regarded as the true line, and that there is nothing in the record to estop or otherwise preclude them from claiming up to that line; qnd, consequently, that they were entitled to a new trial.
We have no brief for the appellee.
The first, and what seems to us to be the main, question in the case, viz., whether the McDaniel line must be
The 3d section of the act provides, that, “ "Whenever the owner of any land within this State, after having given ten days’ notice to the owners of adjoining lands, if such owners reside in the county, and if not, by publication thi’ee weeks successively in a newspaper nearest to such land, shall desii’e to establish, relocate or perpetuate, any corner thereof, or in the same section or line thereof, such county surveyor shall proceed to make the required surveys and location, and if a corner is to be pei’petuated, shall deposit in the proper place a stone or other durable material with the letters and figures answering to such corner, and shall, also, enter in his field-notes, one or more bearing trees, if there be such, the species and size, course and distance thereof, (and if there be no trees, then he shall deposit one or more stones as witnesses to said corner), all of which proceedings shall be entered by him in a book to be kept for that purpose,” etc.
“ See. 8. The survey of such surveyor shall be prima facie evidence in favor of the corners so established, and the lines so run, but an appeal may be taken to the circuit court within three years, and such court may reverse such survey; and upon such appeal being prayed for by any person, such surveyor shall forthwith transmit the papers in his hands touching the same, and copies of the field-notes in the ease complained of, without requiring an appeal bond, and such court, in the trial of such appeal, may receive evidence of other surveys of the same premises, made by the same or other persons, either before or since the one complained of, and if such court shall decide against such surveyor, it shall enter an order for a resurvey, and such new survey may be made by any
It is clear to our minds, that the Legislature intended that, when a survey should be made in accordance with that statute, it should be conclusive unless appealed from as therein provided for.
There would not only be little necessity or use of an appeal, but there would be little certainty as to corners, lines and boundaries, if the question could be reopened as often as a new surveyor might come in, or as often as any of the landholders affected by the survey might desire to have the question reopened. The statute says, “ The survey of such surveyor shall be prima facie evidence in favor of the corners so established, and the lines so run, but an appeal may be taken,” etc. The object of the statute was, as we thiuk, to make such survey prima facie evidence, etc., during the time in which an appeal could be taken, and perhaps pending an appeal when taken; but, where no appeal is taken, the survey becomes, after the time limited therefor, conclusive. Otherwise, such survey settles nothing that may not, upon a new survey and without any appeal, be unsettled. A new survey may doubtless be had, not for the purpose of establishing the corners, lines or boundaries, as an original survey; but for the purpose of re-locating or perpetuating the corners, lines or boundaries established by such original survey, where they have become obscured or lost.
In this case, there is no trouble as to the survey made by McDaniel, and we think it clear that the plaintiffs’ rights as to boundary are to be governed by that survey, without reference to any subsequently made. There is nothing in the evidence that estops the plaintiffs to claim up to the’line established by the survey made by
The judgment, below is reversed, with costs, and the cause remanded for a new trial.