Marsh v. Mitchell

25 Wis. 706 | Wis. | 1868

Dixoüst, C. J.

The defendant Mitchell testifies that when he purchased and took possession of lot 130, and when he built his barn on and fenced it, the original stakes set by the surveyors were standing. Those on the north-west and south-west corners of the lot were marked on the inside “130.” He built his barn inside of the stakes, and three feet south of the north-west corner. Mrs. Marsh, the plaintiff, was in possession of the lot south of 130 at the time. The south side of the stake was marked “ 129,” and that lot was south of defendant’s barn. Mr. Marsh, (the husband of the plaintiff) and the defendant regulated the division fence between lots 129 and 130 according to these stakes, in the spring of 1859. In these statements the defendant is not contradicted by any witness. On the contrary, he is directly supported by the witness Young. With these facts in view the question arises, Which is the better evidence of the true location of lots 129 and 130, the stakes fixed by the surveyors as indicating the corners and boundaries, or the plat, confused and “ demoralized,” as counsel say, by the interpolation of lot 163 where lot 130 was actually surveyed and staked ? It is a settled principle in the construction of conveyances, where any uncertainty arises as to the location, boundaries or extent of the land conveyed, that courses and distances must yield to monuments established on the land itself. The stakes fixed by the surveyors at the corners of the lots were such monuments. The interpolation of lot 163 upon the plat, without the same having been surveyed, staked or designated on the land itself, but the land being entirely occupied by the other lots, introduces the greatest uncertainty as to the description, and in my judgment authorizes the application of the rule that the stakes or monuments fixed on the land, showing the location and boundaries of the lots, and according to which purchasers have bought and taken possession, must govern. And especially do I think this should be the rule, - where it does not appear that the supposed lot 163 has ever been sold by the pro prietors of the original plat, so that any one has ever taken actual possession of any specific part of the land as and for that lot. If any one is to suffer loss in consequence of that lot having been inserted in the plat without a survey and designation of it on the land, it is manifestly not purchasers who have bought, and with the assent of the proprietors taken possession of and improved, the lots according to the boundaries fixed by surveyors, but the proprietors themselves, who are responsible for the error, and who would otherwise deprive the purchasers of a portion of the land to which, according to the plat, they would be entitled. The plat represents each lot as fifty-five feet wide, and so it is in fact by the stakes fixed by the surveyors. Insert lot 163, and the lots would then be less than fifty-three feet wide,' or the-defendant Mitchell would lose his lot altogether. It appears that both the plaintiff and defendant purchased and entered into possession according to the stakes indicating the boundaries and location of their lots. It also appears that they were put in possession, or at least that the defendant was, and the lots pointed out as shown by the stakes, by the proprietors themselves or some of them. I do not think, under these circumstances, that the defendant can be disturbed in his possession, or that the plaintiff has any serious cause to be apprehensive as to the safety of her title to the lot of which she originally took possession. I think, therefore, that the judgment should be reversed, and a new trial awarded. ' ■ 1

By the Court.— It is so ordered.