16 S.D. 109 | S.D. | 1902
This is an action by the plaintiff to recover of the defendant a tract of land in Roberts county adjoining the town site of White Rock, 100x150 feet in extent. Findings and judgment were in favor of the defendant, and the plaintiff appeals. The case was tried by the court without a jury, and it finds, among other things, that on August 1, 1896, and long prior thereto, one J. E. Haggart was the owner in fee simple of the S. W. i and lots 1 and 2 in section 3, in township 128 N., of range 47 W.; that on or about the said day the said Haggart sold and conveyed the property in controversy to the
It is contended on the part of the plaintiff and appellant that the premises in controversy are a part .of the N. W. -J of section 10, while the defendant and respondent contends that the premises are a part of section 3. The appellant contends that the findings are not supported by the evidence.
The prindipal question to be considered is as to whether or not the section line as originally surveyed by the government surveyor ran north or south of the premises in controversy. There was a large amount of evidence introduced on both sides as to the location of the original government section line. The evidence on the part of the appellant tended to prove that the line as originally established was about 135 feet farther to the north, which would leave the elevator property upon section 10. The evidence of the respondent tended to prove that the section line above mentioned was south of the elevator, leaving the property upon section 3. The witnesses for both parties claim to have known the location of the original stake and mound, establishing the government
In the view we have taken of the case, it does not become necessary for us to pass upon the other question discussed by counsel, namely, the question of estoppel, and the question of the invalidity of the deeds to the plaintiff.
The judgment of the circuit court and the order denying a new trial are affirmed.