47 Ind. App. 233 | Ind. Ct. App. | 1911
— Appellants in this case appealed from a survey made of the boundary line dividing the lands of appellants and appellee, made by Benjamin F. Gilstrap, surveyor of Washington county, Indiana.
The surveyor made out a transcript of his record, together with field notes of such survey, and filed it in the office of the clerk of the Washington circuit court, which transcript constituted the complaint, and purports to be a survey of the section line dividing fractional sections fifteen and twenty-two from fractional sections sixteen and twenty-one, township four north, range three east, in said county.
The issues tendered and determined in the case were the correctness of the survey appealed from, and whether appel
The finding of facts, in brief, shows that the lands now owned by appellee were in 1886 owned by John Elliott, and that the true line dividing appellants’ and appellee’s lands was the section line; that said section line had no monuments or known corners, and the location of said line was unknown, and had been in dispute for twenty years by the parties owning the real estate abutting thereon; that said line was surveyed in December, 1886, by 'William C. McCoskey, surveyor of Washington county, but said surveyor did not establish nor locate any corners, and did not make any record of the line or survey so made by him; that at the time of the survey in 1886, Elliott, the then owner, occupied lands west of the line surveyed as the section line and several rods west of the line between said lands now occupied by the parties hereto; that said Elliott had cut timber on said land west of the line fixed by said survey, and after said survey Elliott paid for timber so cut, but never at any time consented or agreed that the line fixed by said surveyor was the true section line dividing said sections; that Elliott in 1892 sold said lands to James H. Reynolds; that in 1893 said Reynolds, without any notice to appellants, had a further survey made by said McCoskej, and that the line of survey in 1893 was west of the line of survey in 1886, but no corners were established and no record made of said survey; that afterwards James H. Reynolds sold said lands to appellee, and in November, 1906, appellee, after notice to appellants, procured another survey to be made by Benjamin P. Gilstrap, surveyor of Washington county; that the Gil-strap survey located the section line some distance west of the lines of both former surveys made by McCoskey; that Gilstrap established corners and made a record of said survey, but that the record was not made as provided by law; that within thirty days appellants herein took an appeal
The court stated as conclusions of law that the Gilstrap survey was illegal; that the section line was the true boundary line between the lands of the parties, and stated where the corners thereof should be located. The court ordered John D. Mitchell, survejror of Floyd county, Indiana, to locate and perpetuate such line and corners in accordance with said conclusions, by marking said corners as required by law. The court further stated as a conclusion of law that appellee was not estopped from claiming any lands east of the section line. Appellants excepted to each conclusion of law, and filed their motion for a new trial, stating as grounds therefor that the decision of the court is not sustained by sufficient evidence and is contrary to law, and that each of the special findings of fact is not sustained by sufficient evidence and is contrary to law.
An exception to the conclusion of law, of which this order is a part, presents no question, because it is not a legal con
Judgment affirmed.