| Kan. | Jan 15, 1888
Opinion by
This was an action brought by the plaintiff in error to recover damages for trespass upon a strip of ground claimed by the plaintiff. It is admitted by both parties that the question in dispute is the boundary line between their farms, the plaintiff owning the southwest quarter and the defendant the southeast quarter of the same section. This land was surveyed by the government in 1870 or 1871, and was settled about the year 1872; from which time up to 1878 the line between said quarters was recognized to be as claimed by the plaintiff in error. At that time, March 18, 1878, the county surveyor of that county made a survey of that section, and established the corner on the south line of said section, being the southeast corner of the plaintiff’s land and the southwest corner of the defendant’s land; from which time up to the commencement of this action the defendant has been in possession of the land under said survey. In May, 1883, some persons interested in the section south of the land in dispute, being dissatisfied with the former survey, ordered and procured another to be made, which was also made by the county surveyor of Sumner county. This last survey located the line as it was originally claimed to have been by the plaintiff, and as now claimed by him. The errors now complained of are, first, that there was no competent evidence to support the judgment; and second, that the court erred in admitting in evidence the survey made by County Surveyor Walton in 1878.
As to the first of these propositions, we think counsel does not seriously contend, for he has in his brief referred to the rule of this court that where there is some evidence tending to support a judgment, the court will not disturb it. There was evidence tending to show that the corner and line as claimed by the plaintiff in error was the true line. In support of it, testimony was taken to show that in the early set
As to the second proposition, we see no error in admitting-the evidence objected to by the plaintiff. The survey made by Walton as county surveyor was not offered for the purpose of showing that a legal and binding survey was made,, but was offered and received, and it is all that is now claimed for it, that it was some evidence tending to show the correct line and corner. It was of the same character and of the same weight as that of the survey made by County Surveyor Wood,, years later. It is not claimed for either of these surveys that they were made in strict compliance with the requirements of the statute. They were simply the surveys made by the county surveyors at the request of somebody in interest. As-far as the evidence shows, no notice was given as required by law to make the survey binding. Each party could have-made as many surveys as he desired, but surveys so made-would not be binding, though they would be competent as evidence, and would be received by the court for what they were worth.
By the Court: It is so ordered.