Major v. Watson, 73 Mo. 661

Major v. Watson

73 Mo. 661 | Mo. | 1881

Norton, J.

This is an action of ejectment to recover a strip of land forty-four feet and seven inches wide off of the entire east side of the north half of northwest quarter of section 9, township 48, óf range 25, in Lafayette county. Plaintiff obtained judgment, from which defendant has appealed, and assigned as error the action of the court in admitting improper evidence, and refusing proper, and giving improper instructions. Plaintiff and defendant were adjoining proprietors, plaintiff being the owner of the north half of the northwest quarter of section 9, township 48, range 25, and defendant being the owner of the north half of the northeast quarter of section 9, township 48, range 25, and the controversy in the ease grows out of the question as to where the true boundary line was between plaintiff and defendant as such proprietors.

1. county sdrvbyor : evidence.

It appears from the record before us that all the section and quarter section corners to said section 9, estabby the government survey, had been j0S£ or destroyed, and hence it became necessary, in order to a settlement of the controversy, that the places where the said corners were located by the govern*663ment surveyors should be ascertained. Eor this purpose, during the progress of the trial, plaintiff offered in evidence what purported to be a survey made by county surveyor Mock, in 1848, of the northeast quarter of section 8 adjoining section 9, in which latter section the land in dispute is located. This evidence was objected to by defendant on the ground that it was not a certified copy of any legal survey made by said Mock, nor was it authenticated as an original survey. The objection was overruled and the evidence received, and this action of the court is assigned for ■error. Section 13 of the General Statutes 1845, page 1044, in force at.the time this survey was made, provides that a county surveyor shall keep a .fair and correct record of all surveys made by himself and deputies in a book to be procured by him for that purpose, * * and shall deliver a copy of any survey to any person requiring the ■same, * * and section 11 of the same statute makes the survey of a county surveyor evidence. The •only certificate to the survey offered in evidence, is as follows: “I certify that the courses and distances given in the above plats are correctly laid down from official surveys made by me.” This certificate neither shows that the survey offered in evidence was a copy of the survey required to be kept by the surveyor, nor does it identify it as the original survey made by Mock, and for these reasons, we think, it was improperly receivéd as evidence.

2. judgment: evi- ' ^enee.

Plaintiff also offered the county court record showing a change in what is called the “ Davis Mill road.” This evidence was received over the objection of defendant, and in this, we think, the court erred. The defendant was no party to that proceeding, and the evidence was inadmissible for the purpose of showing where (in the estimation of those who executed the ■order of the court making the change) the boundary line between plaintiff and defendant was located.

*664 3. land surveys: government corners: lost comers,

*663We think error was also committed by the court in^ refusing the instructions asked by defendant requiring what *664is called in the evidence, the “Mnlkev cor-J tier on the township line between townships 48 and 49 to be taken into consideration in locating, in connection with the field notes, section corners in township 48. That the so-called Mulkey corner was established and planted by the government surveyors, does not admit of question according to the evidence. It was shown to be such by the evidence of an early settler, who saw it marked as such when the government survey was made, and was proven to be such by bearing the test of measurement (according to the evidence of Surveyor Lockhart) from two existing government corners north of it, one being a half mile and the other one mile distant. The fact that this corner was established in running a random line, and that it stands south of the township line, makes it none the less a government corner, to be observed and regarded in the location of other corners lost or destroyed. McClintock v. Rogers, 11 Ill. 279.

4.-: re-establishing lost corners.

The field notes of the government surveyors in sectionizing township 48, call for the section corner between sections 2 and 8 on the township line at a . , point seventy links west or the “ Mulkey corner,” and for the section corner between sections 8 and 4 on said township line fifty links west of the government section corner between sections 33 and 34 in township 49, and for section corner between sections 4 and 5 on township line 176 links west of the section corner between sections 32 and 33 in township 49. The corners thus called for are gone, and there being no fixed monuments called for in the field notes, the coui’ses and distances therein called for must prevail in establishing such corners. It appears from the evidence of Mr. Lockhart, county surveyor, that in the survey made by him he entirely disregarded the field notes in the call for corners on the township line between townships 48 and 49, and ran his line at a variation of seven degrees, when the lines run by the government were run at a variation of eight degrees. The *665survey spoken of by him in his evidence as having been made by Surveyor Bliss, seems to have been made more in conformity with the rules laid down in Lester’s Laws and Regulations, pages 715, 720, 728, than that made by Lock-hart. The primary object to be attained in the establishment of lost corners is to put them, if practicable, in the exact spot they were put by the government, and this object can best be accomplished when all traces of the corners are gone and there is no fixed monument called for, by observing the courses and distances called for in the field notes of the original government survey. Judgment reversed and cause remanded,

in which all concur.