144 Ind. 393 | Ind. | 1896
The appellant herein appealed to the circuit court from a survey by the surveyor of Lake county. The judgment below was in confirmation of the survey. The only motion or proceeding in the lower court presenting alleged errors in the trial was a motion for a new trial, assigning as causes therefor that the judgment was contrary to the evidence and that it was contrary to law. It is here assigned as error that the lower court overruled the motion for a new trial; and, “Second: The court below erred in entering judgment for appellant.” That the second assignment presents no question for review needs but the suggestion that until the circuit court was given some opportunity to pass upon the question no ruling existed to constitute the basis of such an assignment. As to the first assignment, the only possible questions arising and discussed by counsel depend upon the evidence, and the evidence is not properly in the record. The record discloses no entry of the filing, in the lower court, of the longhand manuscript of the. evidence. That it should have been filed was indispensable.
It is shown by another part of the transcript and in what purports to be the original bill of exceptions that “It is agreed that the DeCoursey survey contained in Fisher’s survey and on page 6 of this record is a true copy of the original government survey.” All that we have said of the former statement, as to the Fisher survey constituting no part of the record as evidence, can be said of this statement. However, we may suggest, after having carefully read the entire record, that treating the DeCoursey survey, made in 1867, as part of the evidence and accepting the above statement as true, we have found conflict in the evidence as to w'hether the parties owning the lands on either side of the disputed line did not, from the date of that survey and for more than twenty years before the last survey, adjust their fences to the line then established, occupy and cultivate their lands up to the line, claiming to be the owners thereof. The conflict in the evidence as to title by adverse possession was for the lower court and not for this court. We may make the further suggestion, as showing the lack of merit in the appeal, though not intendingto decide the question, that, by the agreement last quoted, the government survey and the DeCoursey survey established the same corners and lines. By the evidence of surveyor Fisher and by his survey the lines and corners established by the DeCoursey survey were adopted by him. While he denied that they were correct, he felt bound by them. By the above agreement such lines and corners, though Fisher believed them incorrect,
If, however, the trial court had found the De-Ooursey survey void for the want of notice, or had learned from the above agreement and the evidence of Fisher that it followed the government corners and lines, and that Fisher followed it, necessarily getting the government corners or lines, the result was correct, that is to say, if Fisher found and followed what is agreed to be the government corners and lines, he did all that it is the object of any survey to do. While it is apparent that there is conflict between the agreement of the parties and the evidence of Fisher, the agreement would, of course, control the decision.
The judgment of the circuit court is affirmed.