179 Ind. 67 | Ind. | 1913
Action by appellee against appellants and others to quiet title to real estate. The complaint is in one paragraph, and the answer of all defendants who answered, in general denial, some of them defaulting. Appellant Maud Howard and one Burk filed cross-complaints seeking to quiet title by adverse possession to separate portions of the real estate described in the complaint. There was a trial by the court, finding, and judgment in 1906 in favor of appellee on the complaint and cross-complaint, quieting title in him against all the parties. Appellant Maud Howard filed a motion for, and obtained a new trial as of right. Appellee was the only party defendant to her cross-complaint, and the original judgment against the other original defendants stands so far as the record discloses, and the trial was had on the issues between appellants and appellee, which resulted in a judgment in 1908 against appellants only, and from that judgment the appeal is presented.
Appellants deraign title from John Blount or Blunt, through a deed dated November 5, 1855, for ten acres by metes and bounds, in the certificate of the acknowledgment of which he is called John Blunt. Appellee deraigns title from John Blunt and Barbara Blunt his wife, in the certificate of acknowledgement to which he is called Bloynt, and she Blount, dated December 25', 1871. The name John “Blount” in the first deed and John “Blunt” in the other, is signed by mark. The land was entered in 1834 by the style of John Blount. The description in the complaint is as follows: All that certain part of the west half of section 3, in township 24 north, of range 11 east, bounded as follows, viz., Beginning at a point on the east line of the southwest quarter of said section 3, 20.28 chains north from the southeast comer of said southwest quarter of said section 3, the magnetic bearing and the true bearing of said east line of said southwest quarter of said section 3 being north, and running then west at right angles with said east line of said southwest quarter of said section 3, 10.90 chains, thence north 5 degrees west, or at an angle of 95 degrees with the last-described line, a distance of 13.50 chains; thence south 74 degrees 30 minutes west, or at an angle of 79 degrees 30 minutes with the last-described line a distance of 8.40 chains, thence north, or at an angle with the last-described line of 74 degrees 30 minutes, a distance of 7 chains to the center of the Salamonia River, thence up the middle of the channel of said river to where said channel of said river is intersected by said north line of said southwest quarter of said section 3, thence east with said north line of said southwest quarter of said section 3, 4.51 chains to the northeast comer of said southwest quarter of said section 3, thence south with said east line of said southwest quarter of said section 3 and at right angles with said north line of said southwest
The second claim is, that the complaint must contain a certain definite description of the real estate, the title to which is sought to be quieted. On its face there is apparently no difficulty in locating the lines. The lines would be run with reference to the north and south centre line of section 3, being a due north and south line, in addition to the fact that it is alleged in the complaint that the true and magnetic meridian is north, or identical.
The deed under which appellants claim title describes by metes and bounds 10 acres in the southwest corner of the same 40 acres entered by John Blount, and some of the bearings in that description are identical with those in the deed under which appellee claims, which conveys all the same 40 acres except 10 acres in the southwest corner, disclosing that the same base line was referred to in each. There is this, however, to be said with respect to the description, and it furnishes the basis for the controversy, that the difficulty lies in applying the lines on the ground, and the confusion which arises under the evidence of the surveyors. The real controversy grows out of the fact that owing to the variation of the magnetic meridian north and south from the true
One witness, a surveyor, testified to a survey made in 1886 at the request of Miller, who then owned the lands now owned by appellants, to ascertain the lines, for the purpose of obtaining a loan. The title was shortly after vested in the father of said Miller, and the father shortly
One surveyor testified that the true meridian and magnetic meridian rarely coincide in that part of the country, and do not on section 3, in which the land in controversy is located; while another testified that the magnetic meridian varies there, and that he tested this identical line, and on this land in 1902, when the needle and the true meridian did coincide, and that there is a difference between the magnetic and true meridian, which do not coincide, and the actual action of the compass needle, and the true meridian, which may coincide; that he had attempted to locate the lines of a survey made in 1854 by one Pearl, which appear to be the lines in controversy here, and that following the bearings as given in the deeds, and treating the true meridian as the base line, he found stakes in the old fence row, at the corners. A surveyor testified that he was called on by appellee in 1901, after the death of his father, William Twibell, after appellee had gone into possession under his heirship and purchase from the other heirs, but before he received a conveyance from them, to locate the line between his lands and appellants’ land, then owned by Miller, and that he called on Mr. Miller for a description, and that he gave him one, and he worked from that, and that when he got to the end of the first bearing he said to Mr. Miller, “there is where the corner is,” indicating it to Mr. Miller, and the latter said, “well it is not exactly where the fence is, but I don’t know where the corners are, and that’s what we got you here for.” This point was the point about 11 feet south of the fence at the west end of the first call and bearing, in the course of running the line. Another deed in appellants chain of title for ten' acres out of the 40 acres in which the trouble arises fixes the north and south lines as varying to the west, in running north, 5 degrees, indicating with the corresponding lines in appellee’s chain of title, that
8. A serious question in the ease to our minds, and one not adverted to by either party, is as to whether the statute of limitations had not fully run prior to the declarations of Miller, and if so, what was the legal effect of that status, if it existed? The issue presented covers that question, and the court found against appellants. If the statute had fully run in 1886 or 1901, it might be a question whether the statements or implied admissions of want of title in him, by Miller, would affect the question. Fatic v. Myer (1904), 163 Ind. 401, 72 N. E. 142; Rennert v. Shirk (1904), 163 Ind. 542, 72 N. E. 546; Moore v. Hinkle (1898), 151 Ind. 343, 50 N. E. 822; Riggs v. Riley (1888), 113 Ind. 208, 15 N. E. 253; Logsdon v. Dingg, supra; Bradford v. Guthrie (1870), 4 Brewst. (Pa.) 351; Bell v. Hartley (1842), 4 Watts & S. (Pa.) 32. But in Georgia it has been held admissible to prevent the running of the statute, against the owner of the fee. Long v. Young (1859), 28 Ga. 130; Cook v. Long & Malcolm (1859), 27 Ga. 280. We express no opinion on that question, for the reason that there was evidence from which the court might have concluded that possession was not claimed as of right, so as to be adverse, within the rule of Maple v. Stevenson (1890), 122 Ind. 368, 23 N. E. 854, and Parish v. Kaspare (1887), 109 Ind. 586, 10 N. E. 109, or as claiming only to the true line, wherever that might be, within the rule in Logsdon v. Dingg, supra. Upon that question we might have differed from the finding of the court below, but there is some
The complaint avers “the magnetic bearing, and the true bearing of said east line of said southwest quarter of said section 3 being north. ’ ’ That fact is testified to by one witness who made the survey from which the description is taken, and the same witness testified that there is a difference between the magnetic bearing and the magnetic meridian, and that the magnetic bearing or diurnal variation and the true meridian may coincide, and did in this case, but that the magnetic meridian and the true meridian never coincide in that locality. It is a recognized, scientific fact that the so-called “secular variation,” found by taking accurate observations in the same place for several years, varies many degrees east, and also west, of the true meridian at different times. It seems to us that if the magnetic bearing and the true meridian coincide as a due north and south line, and is the base line from which the others were run, the lines as claimed by appellants would be the true lines; while if the magnetic meridian was the base line, the lines as claimed by appellee are the true lines, but we are unable to reconcile the lines as claimed by appellee with a due north and south line. Perhaps it may be done, but neither the evidence, nor any assistance of counsel gives us any aid, and we are bound to presume the court below was so aided as to arrive at the conclusion it did. It may be that the description of the magnetic bearing and the true bearing as being due north and south was intended, or in the science of surveying was inserted, as stating a fact, or as distinguishing it from the magnetic meridian, which latter appears to us in fact to have been the real base line from which the other lines were run, both from the variation shown and also from the fact that they were run with a compass. At any rate, we would not be justified in reversing the judgment, and it is accordingly affirmed.