Lally v. Rossman

82 Wis. 147 | Wis. | 1892

Winslow, J.

It is plain that there is but one question of importance in the case, and that is the question as to the southern boundary of lot 5. If that boundary be the old meandered line of the river, the judgment below was right. If, on the other hand, that boundary be the eighth line between the northwest quarter of the southeast quarter and southwest quarter of the southeast quarter, then the plaintiff should have recovered the value of the 185,000 feet of lumber cut.

It is well settled that in government grants meander lines are not boundaries, but the water course itself is the boundary. Whitney v. Detroit L. Co. 78 Wis. 240, and cases cited. The Whitney Case is decisive of this case, and. leaves little to be said. In that case it was held that where a lake was named as a boundary, and no lake in fact existed, the boundary must be the next eighth line. Applying that rule to this case, it is evident that plaintiffs’ southern boundary is the eighth line, except where the river extends north of this line. Not finding their rivev boundary as called for by the patent, they may go in search of it to the next eighth line, but there .they must stop.

Some minor questions were raised by respondents, which contain no merit. It is said that the appeal was premature, because the costs were not taxed until after the appeal was taken. The record shows a judgment in due form, with costs taxed and inserted, November 23, 1891. The appeal was taken and perfected December 2, 1891. There is nothing in the record to show that the judgment was not complete and final when this appeal was taken.

It is said that the copies of the government plat, survey, and field notes were not properly proven, the certificate being that of the chief clerk of the land office, when it should have been made by the secretary of state. As to this objection: First. The certificate was sufficient, under ch. 20, Laws of 1819; S. & B. Ann. Stats, sec. 4151a. ¹ Second. Defendants stipulated that the jury should find in their verdict, in substance, all the facts which the plat, survey, and field notes tended to prove. Doubtless further good reasons might be found to sustain the ruling, but these seem ample. The second reason above given applies also to the objection that the survey of the actual location of the river was not accurately made.

No new trial is necessary. The facts have all been determined.

By the Cov/rt.— Judgment reversed, and cause remanded with directions to render judgment for plaintiffs for $1,156.25, writh interest and costs.