180 P. 574 | Mont. | 1919
delivered the opinion of the court.
This is an action in ejectment. Plaintiff became the equitable owner of the northwest quarter, and the defendant the equitable owner of the northeast quarter, of section 25, township 21 north of range 12 east, by purchase at a sale by the state of lands acquired by it from the Federal government in said township and range, consisting of sections 24; 25, 26, 34, 35, and the southeast quarter of section 23. By the mutual agreement of the parties the officer in charge of the sale issued certificates to plaintiff and defendant,' conveying to them, respectively, the northwest quarter and the northeast quarter of section 25 in said township and range. From the date of the sale to the spring of 1913 they occupied the two quarters conjointly for grazing purposes. In the spring of 1913, each party being desirous of cultivating the land so obtained, an effort was made to divide up the half section.
In his complaint, the plaintiff alleges, among other things: “That they were unable to discover any monuments, descriptive marks, or natural objects upon the ground” marking the boundaries of the section, and that, “in so far as the monuments or distinguishing marks upon the ground were concerned, the
The defendant by his answer puts in issue the allegations of the complaint as to any uncertainty or doubt concerning the location of the government survey monuments upon the ground, and alleges that the section and quarter-section corners could all b.e located without difficulty.
The foregoing summary of the pleadings and admissions comprises a complete statement of the material facts in the case, and is sufficient to dispose of all the issues of law and fact in dispute.
At the close of all the testimony, the court, on defendant’s motion, directed a verdict in his favor, the essence of which is contained in the third paragraph thereof, as follows: “That there is in this case no material conflict in the evidence as to any material issue framed by the pleadings, and, on account thereof, the questions presented have become wholly questions of law, and there is no fact upon which the jury may return a verdict. ’ ’ The court below took the respondent’s view of the evidence, sustained the motion, denied the plaintiff’s motion for a new trial, and
The appellant contends: (1) That with the aid of the courses and distances indicated in the field-notes, it can be demonstrated that the fence line established by himself and defendant fixed the true boundary between the two quarter-sections in question; and (2) that under the parol agreement entered into between himself and the defendant the practical line dividing said two quarter-sections was permanently fixed, and is binding upon the defendant.
The respondent contends that the monuments were in the places allotted them by the surveyor making the original survey, were visible, and from them the true dividing line could be readily ascertained.
That the subject of disputed boundaries has been a fruitful
“The public lands of the western territories, which became the property of the United States government upon the formation of the present Union, were by Acts of Congress surveyed and divided up into townships, sections and subdivisions of sections. When afterward lands were sold to private individuals, they were always described by referring to the number of the
“Prima facie, a fixed visible monument can never be rejected as false or mistaken in favor of mere course and distance as the starting point, when there is nothing else in the terms of the grant to control and override the fixed and visible call. The general rule that courses and distances must yield to natural or artificial monuments rests upon the legal presumption that all grants and conveyances are made with reference to an actual view of the premises by the parties.” (Tyler on Ejectment, 569; Garrard v. Silver Peak Mines (C. C.), 82 Fed. 585, and cases there cited.)
“Monuments are facts; the field-notes and plats indicating courses, distances and quantities are but descriptions which serve to assist in ascertaining those facts.” (Martin v. Carlin, 19 Wis. 454, 88 Am. Dec. 696.) When there is a conflict between
“Marks on the ground constitute the survey; courses and distances are only evidence of the survey.” (9 C. J., see. 210; Hunt v. Barker, 27 Cal. App. 776, 151 Pac. 165; Woods v. Johnson, 264 Mo. 289, 174 S. W. 375.)
The uncontroverted evidence regarding the monuments is substantially this: That but one survey was made of township 21 appears by the certificate of the surveyor-general, found in Exhibit “B.” The witness Culbertson, testifying for plaintiff, stated: “Q. When the resurvey came it was established just exactly where we find the monuments marked 4, 7 and 11 on Exhibit ‘A’ for plaintiff, in reference to section 25? A. They found corners already established. * * * Q. Yet there is
The witness Merrifield, summoned by the plaintiff, it appears, is a civil engineer of established reputation, familiar with the locality, having made a survey of the section in question years before. In his testimony he definitely establishes the northeast comer of the section at point 7 on plaintiff’s Exhibit “A,” the southeast comer at point 4, the southwest corner at point 3, and the northwest corner at point 5%i, the east quarter corner at point 11, the south quarter corner at point 10, and the north quarter corner at point 6. Concerning point 3 on the red line, he says the southwest corner is properly located there, having discovered that comer mark many years ago. He states that he has frequently seen it since. The witness Lindsay, testifying for defendant, corroborates Merrifield, and states. that the southwest comer is marked by four pits, the point indicated by plaintiff’s witness Culbertson at point 3.
With ocular and tangible proof of authentic boundaries at hand, it would be illogical to resort to courses and distances; for when physical marks, established and stamped by a govern
Appellant, in his brief on page 13, says: “While it is true that courses and distances usually give way to monuments, this is only true where the monument is clearly established as such by other evidence associated with it.” The court below, short of being actually upon the ground, following step by step the
In this condition of the pleadings and the proof, it was incumbent upon the plaintiff to make out a prima fade case in such degree that men of ordinary minds might not well differ, to substantiate these propositions: (1) That there was a real dispute concerning the boundary line between the two quarter-sections, by reason of doubt or ignorance as to the true dividing line; and (2) that by reason thereof a valid agreement was consummated between himself and defendant, fixing definitely the line claimed by him as the true dividing line between the two quarter-sections involved.
Throughout this discussion it must be borne in mind that unless the evidence is clear and satisfactory and of such a character that the court would be required to hold it sufficient against a motion for a new trial, the issues must be decided against the plaintiff.
By their muniments of title, the plaintiff acquired the northwest quarter and the defendant the northeast quarter of section 25. The deeds are not in evidence, and aside from the testimony placing the official monuments, we have no means of fixing the
The plaintiff himself testified that: Defendant told him that he desired to cultivate the northwest quarter of section 25, and “we arranged to go out and locate the boundary. He came to my house one morning, and we took a fifty-foot tape measure and went to a temporary monument that Mr. Culbertson had erected.
It is impossible to reconcile the last-quoted sentence of the plaintiff, the statement in his complaint that the attempt to fix the boundary line was “to avoid the possibility of a dispute,” and the further fact.testified to by him that “the fence was erected twelve feet west of the line we established between the two stakes, ’ ’ with the assertions of his counsel that the conventional line was intended to be the permanent boundary line dividing the premises in question. On this showing, we think, the court below was justified in directing a verdict for defendant upon the theory that neither party claimed more than to the true line, and that occupancy to the fence was merely subject to the future ascertainment of its proper location. Where this state of facts is shown, the authorities will be found to be practically in accord. (Lemmons v. McKinney, 162 Mo. 525, 62 S. W. 92.) As said in Perkins v. Gay, 3 Serg. & R. 327, 8 Am. Dec. 653, by Mr. Justice Gibson, speaking for the supreme court of Pennsylvania': “If the parties, from misapprehension, adjust their fences, and exercise acts of ownership, in conformity with a line which turns out not to be the true boundary, or permission be ignorantly given to place a fence on the land of the party, this will not amount to an agreement, or be binding as the assent of the parties. ’ ’
The burden of proof is always upon the party attempting to show the existence of an agreement fixing the location of a boundary line, and that the boundary so fixed had been accepted
It is also well settled that where two adjoining proprietors
There was, then, under this state of the evidence, no dispute concerning the true dividing line, because the monuments were in place and identified by plaintiff’s witnesses as such, making gertain that which can be made certain. (Rev. Codes, sec. 6206.) No valid agreement between the parties establishing the dividing line could be made under the conditions shown here, because the law -will not permit an exchange of title to land without complete observance of the statute of frauds as expressed in section 5091 of the Revised Codes. The case of Hoar v. Hennessy, 29 Mont.
Affirmed.