204 N.W. 326 | Minn. | 1925
Plaintiff bought the northeast quarter of the northwest quarter and lot 2 in section 33, township 144, range 29, from the United *477 States, receiving a patent thereof in December, 1922, about a month before the alleged trespass. The government had held the title in trust for an Indian allottee. The patent recites that the whole tract contains 73 25/100 acres. Defendant had some timber to cut in section 28, the section bordering section 33 on the north, and claimed the right to also log lot 1 of section 33 immediately to the east of the northeast quarter of the northwest quarter owned by plaintiff. There is no question but that defendant cut some timber south of the north boundary line of section 33. The dispute is concerning the location of the quarter post on that line.
The township was surveyed in 1873 by one Conger under the direction of the United States. The plat made by Conger shows section 33 to be fractional and bounded on the easterly side by the waters of Leech lake. The original northwest and southwest corners are identified and located. Also the location of the southeast meander corner is not in serious doubt, that being 4 chains due east from the southwest corner. It is in the waters of the lake, but in 1901, when the shore was meandered and surveyed by the government to obtain flowage rights for the flood control by a dam at the outlet of Leech lake, the witness trees were there, and the corner was then located by Mr. Dunaway, who was making the survey. There were two surveys made after the trespass, the one by Mr. Dunaway and the other by Mr. Kibbie. The latter was rejected by the court as not made on correct principle in relocating the north quarter post, and the Dunaway survey was accepted as correct. None of the original quarter posts in section 33 have been found or their places located on the ground. Nor have the original northeast or southeast corners of section 28 been ascertained. A straight line drawn from the southwest corner to the northwest corner of section 33 bears west 17 x 12', so that the northwest corner is in fact 1,634 feet further west than the southwest corner. The field notes of the Conger survey call for a quarter post on the north line of section 33, 40 chains east of the northwest corner, and for a meander corner post where the north line of the section intersects the lake 62.51 chains east of the northwest corner thereof. The actual distance from the northwest section corner to the lake on the *478
north boundary line is 7,465 feet instead of 4,125.66 feet or 62.51 chains as stated in the field notes. In the Dunaway survey this excess length of over 3,300 feet was apportioned between the 40 chains and the
If this is a case for the apportionment of excess territory in a section where the original quarter post cannot be found or its place located, the Dunaway survey correctly placed it under the rules promulgated under Federal authority and as accepted and followed in Kleven v. Gunderson,
The reason for adopting the Dunaway survey apportioning the excess is: The original section corners placed by the government survey must remain where found no matter how incorrectly placed, and they control the subdivision of the section if the original quarter posts cannot be ascertained. Ferch v. Konne,
Appellant relies on Security Land Exp. Co. v. Burns,
A great many assignments of error are directed to rulings on testimony bearing on the market value of the timber cut, considered in the shape of stumpage, logs and the lumber sawed. Rulings on these matters should not cause a new trial, for the complaint as finally amended was for the recovery of the diminished value of the whole tract conveyed by the patent by reason of the cutting down the trees upon about 25 acres thereof. While the value of the stumpage, logs and lumber may be considered by the jury in fixing permanent damages to the land as a whole, it is far from controlling. Moreover, our examination of the record discloses no grave errors in the rulings upon the trial of which appellant may justly complain. Most all of such assignments of error are not touched upon in the brief, and should not be considered as presented by the appeal.
In view of the trial court's holding the Dunaway survey controlling, no prejudice could result from the evidence received that the government after being apprised of the inaccuracies in the Conger survey refused to order a resurvey.
On the motion for a new trial newly discovered evidence was made a ground. This newly discovered evidence, or rather the fact of a subsequent event, was that a resurvey of the township by the government had been made since the trial. There was no claim that such resurvey had as yet been approved by the proper authority. But such resurvey cannot affect the rights of those to whom land was patented prior thereto, and is immaterial here. Burton v. *481
Isaacson,
The order must be affirmed.