Miller v. Lavelle

130 Wis. 500 | Wis. | 1907

Timlin, J.

This location of the boundary lines of lots 3 and 4, block 11, determined the case against the plaintiff and judgment was given accordingly. It appears without substantial dispute that the platted lands embraced within said Western addition are in fact on the level of a plateau, and that to the south from about the east end of Governor street to the west line of the plat, and perhaps further, the plateau comes to an end by a somewhat abrupt descent to the flats of the Ohippewa rivér. Some of the witnesses estimate that the angle of descent is about thirty degrees — presumably counting from the surface of the plateau extended. The contour of this descent on the surface of the plateau is such that, if a line were traced along the edge of the plateau, called by the witnesses “the brow of the hill,” an irregularly curved or meander line would be produced which would cut or intersect the lines of the lots and streets of said addition, not at the distances indicated by the lengths of such lines on the plat, but beyond or south of such lengths at distances varying from eleven to twenty-four feet. The contour line of the edge of the plateau would, however, close the survey of the Western addition by an irregular boundary having a close general resemblance to the south boundary line indicated on the plat in all of its points except that of distance or length of lot lines as indicated on the plat. The plat of the Western addition shows by figures marked thereon that the length of the northwesterly line of lot 4 extending to the south boundary of the plat is only eighty-one feet, and the southeasterly line of lot 3 extending to the same boundary is only twenty-two feet. To the boundary found by ,the court, viz., the edge of the plateau, the length of the former line is at the utmost 105 feet and the latter thirty-three feet. No field-notes of the survey are produced. These lots are both shown on the plat to be what are commonly known as fractional lots; that is to say, the irregular’ south boundary of the plat cuts the end line and the farther side line of lot 4, leaving this lot roughly triangular in shape,, and cuts off the -louth corner of lot 3, leaving the latter in the shape of a parallelogram with one corner lopped off. The irregular line which thus closes on the south the survey of the plat in question has indicated on the plat all along that side of it toward the descent from the plateau a series of short parallel pen lines such as are commonly used by surveyors and platmakers to indicate elevation.

The appellant contends that the courses and distances marked on the plat, instead of the location of the edge of the plateau on the ground, should govern the location of the south boundary of the plat in question, and consequently the location on the ground of the boundary line in dispute between the parties. The cases of Davis v. Rainsford, 17 Mass. 207; Murdock v. Chapman, 9 Gray, 156; Slater v. Rawson, 1 Met. 450; Thatcher v. Howland, 2 Met. 41; Parks v. Loomis, 6 Gray, 467; 4 Lead. Cas. Real Prop. 367; Buffalo, N. Y. & E. R. Co. v. Stigeler, 61 N. Y. 348; Higinbotham v. Stoddard, 72 N. Y. 94; White v. Luning, 93 U. S. 514, 525; Grier v. Pa. C. Co. 128 Pa. St. 79, 18 Atl. 480; Wharton v. Garvin, 34 Pa. St. 340; Esmond v. Tarbox, 7 Me. 61; and Pereles v. Gross, 126 Wis. 122, 105 N. W. 217, are cited to the several exceptions to the rule that monuments control courses and distances in the determination of boundaries. Pereles v. Gross, 126 Wis. 122, 128, 105 N. W. 217, is, however, not such a case. That case on this point merely affirms that “where there is absolutely no direct evidence as to the place of physical location on the ground of the line or point in question or of any intervening point, the 'declaration of the plat that it is so many feet in. a given direction from the starting point must control, at least in absence of other physical facts inconsistent with such result.” We think this case is not within any of the exceptions mentioned in the other cases cited by appellant. Where there is a natural monument or what is equivalent to a natural monument there cannot be said to be “absolutely no direct evidence as to the place of physical location on the ground of the line or point in question.” In Madison v. Mayers, 97 Wis. 399, at page 411 (73 N. W. 43, 46), the following is quoted with approval:

“In ascertaining the true location of the streets, lots, and blocks in a city, according to the plat and survey thereof, regard is to be had (1) to the natural monuments referred to therein, and (2) to the artificial monuments placed by the surveyor to mark lines or boundaries, before resorting to the courses and distances marked on the plat or survey.”

Thus courses and distances in this classification come third in order of certainty, but it is not intended to lay down a rule of law that courses and distances shall, in all cases, overcome every other species of evidence with reference to location except natural or artificial monuments. In Galesville v. Parker, 107 Wis. 363, 83 N. W. 646, it is said:

“The rules by which the lines of such plats are to be ascertained are well settled. In the absence of natural boundaries or monuments, and' of monuments or stakes set in the course of the original survey, the lines of ancient fences and long-continued occupation of adjacent lots and blocks in the same plat, if evidently intended to mark the true lines of such lots and blocks, have greater probative force than mere measurements of courses and distances.”

The fact that there exists on the ground south of the survey in question an abrupt descent from the plateau upon which the lots are situate, and that the contour of that descent on the upper surface would cut the lot and street lines and close the survey substantially as indicated on the plat, although at a slightly greater distance to the south as stated, and the fact that the plat contains a picture or representation of such de- ■ scent by the short parallels before mentioned, and that the line a.t the beginning of such descent or top of the ascent corresponding with the edge of the plateau is made to appear to •close the survey of the plat on the south, and that without such plateau edge there are no data from which such irregular or meander closing line could be located between the points •of contact of the street and lot lines with the southern boundary, all give the point indicated in the finding of the court 'the probative value of a natural monument, mentioned not in the writing, for we have not the field-notes of the survey, but by pictorial representation on the plat. Having arrived at this conclusion, it follows that the judgment must be affirmed.

By the Gourt. — The judgment of the circuit court is af.firmed.