Lind v. Hustad, 147 Wis. 56

147 Wis. 56 | Wis. | 1911

ViNJE, J.

By a reference to the statement of facts and the accompanying map it will be seen that the only dispute between the parties was as to the true location of the southeast comer of section 12. No stake, bearing trees, pit, mound, stone, or other monument marked the comer. The defendant claimed it was a lost corner and should be relocated by proportionate measurements from known comers, while plaintiff claimed it was only obliterated and could, and should, be relocated from the minutes of the original government field-notes. They contained the following calls:

Township No. 35 between Eanges 12 & 13 west.

Chain North between sec. 7 & 12 var. 8° 39 East.

2.90 Enter bottom bears East.

3.80 Spring brook 10 links wide runs East.

7.65 Creek 20 links wide runs S. E.

Sec. 27 of the Eules of the General Land Office relating to the restoration of lost or obliterated comers provides:

“The identification of mounds, pits, buried memorials, witness trees, or other permanent objects noted in the field-notes of tbe survey, affords the best means of relocating the missing comer in its original position. If this cannot be done^ clear and convincing testimony of witnesses as to the place it originally occupied should be taken, if such can be obtained. In any event whether the locus of the comer be fixed by the one means or the other, such locus should always be tested and confirmed by measurements to known comers.”

DEFENDANT LAND RANGE UNE

Appellant claims that the calls relating to bottom, “spring brook,” and “creek” do not come within the phrase “or other permanent objects noted in the field-notes of the survey.” We are unable to concur in such claim. Each must be classed as a permanent object within the meaning of the section quoted. True, creeks sometimes quite materially change their course owing to avulsion or erosion, or both. But such changes are the exception, not the rale.

There was no evidence in this case to show any change in either the spring brook or the creek. It is apparent that the bottom land conld not have materially changed its location. That there has been no change in any of the three calls is made certain by the fact that the survey of Mitchell shows that each call of the field-notes was answered by the present location of these natural objects.

It was decided as early as Martin v. Carlin, 19 Wis. 454, that a call for a natural object, such as a river, will control courses, distances, and quantity, and it was therein explained why the rule was not applied to that particular case. “A river, a known stream, a spring, or a marked tree will control as to courses, distances, and quantities.” Gove v. White, 20 Wis. 425, 432. This rule was reiterated in Borkenhagen v. Vianden, 82 Wis. 206, 52 N. W. 260. We have, then, a case where three calls of the field-notes for permanent natural objects unite in the relocation of the section corner. Such a corner cannot be called a lost corner. Pickett v. Nelson, 79 Wis. 9, 47 N. W. 936.

The map shows that the testimony of plaintiff’s surveyor, Mitchell, to the effect that practically no other line than that claimed by plaintiff would meet the calls of the field-notes, is true. The line claimed by defendant would not cross the spring brook at all, while it would cross the creek three times instead of once only as called for by the field-notes. The plaintiff relocated the comer by competent evidence.

Several errors are assigned because the court rejected evidence offered by the defendant. Such evidence related to the location of the corner by reputation, by alleged acquiescence of parties, or by the construction of fences. This court has said: “It is not competent to make a boundary line by parol except when the same is in doubt and unknown.” Hartung v. Witte, 59 Wis. 285, 299, 18 N. W. 175. And in Pickett v. Nelson, 79 Wis. 9, 12, 47 N. W. 936, it is stated:

“It will not do to say that the line was unknown and uncertain because some of the original monuments, placed by the government surveyors in tbe first instance to mark tbe corners, were missing, or could not be identified. If tbe field-notes of tbe original surveys afforded means for ascertaining tbe true location of tbe boundary line, that was sufficient.”

Here no impeachment of tbe correctness of Mitchell’s survey was made. That being so, evidence of'reputation and acquiescence was incompetent to establish tbe line in a different place than that called for by tbe field-notes, and its exclusion by tbe court was not error.

A claim is also made that an action of trespass will not lie. Tbe stipulations of tbe parties set out in tbe statement of facts dispose of tbe question adversely to the defendant.

By the Court. — Judgment affirmed. •

BauNes, J., took no part.