89 Iowa 556 | Iowa | 1893
This action was originally ejectment for the possession of a strip of land on the boundary between lots 7 and 8 in block 37 of Corbin & Lawler’s plat of the town of Emmetsburg, Iowa. The plaintiff owns lot 7, and the defendant owns lot 8, which lies directly south of lot 7; the defendant has a store building and barn on his lot, and it is alleged that they encroach upon the plaintiff’s lot. The. defendant denies that the buildings are on the plaintiff’s lot, and avers that the corner between these lots, and other corners in the east half of block 37, are lost or in dispute, and asks that the owners of the other lots in the east half of said block be brought in, and commissioners be appointed to make a survey and establish corners as provided by the statute, which was done. The commissioners filed their report. The defendant filed exceptions thereto; also a motion to reject the report. The exceptions and motion were overruled. The defendant then filed a motion to modify the report, and for judgment, which was also overruled. Judgment was then entered confirming the report of the commissioners, from which this appeal is taken.
As we view this case, we are not called upon to review that question. The object of notice, even if required in such cases would be to advise the party as to the fact that the commissioners were about to make a survey, and take evidence, so that an interested party might be present, if he desired, and produce any evidence he might have which might tend to show the exact location of the corner or line in controversy. If this opportunity was open to the defendant, and if he knew when the survey was to be, or was being, made, and if he had a reasonable opportunity to introduce his evidence before the commissioners, then the purpose and effect of a notice would have been accomplished. It is not claimed that any formal notice was served. It is not denied that the defendant and one of his attorneys testified before the commission. From the testimony taken upon the hearing on the exceptions and motion it appears that the defendant’s attorney knew the commissioners were at work making the survey, and was with them some of the time; that both he and the defendant knew when testimony was being taken; that the defendant was advised by the commissioners that they wanted him to produce his testimony; that he refused because his attorney was not there. There is some contention as to what time in the evening it was that the defendant was notified to bring his witnesses; and, if it be conceded that the hour was unreasonable, it sufficiently appears that the defendant could have introduced his witnesses the next day, if he had desired so to do. We conclude, then, that the defendant had information of all the proceedings.
Was material evidence omitted, to the defendant’s prejudice? We think not. It is objected that the starting point of the survey was from an iron pin at the southeast corner of block 37. It is said the fact that the pin is located at the original corner is in dispute. No one disputes it, except McCarthy, and he testifies with reference to it that when he and Harrison put the iron pin there “he would not say whether we found the old stake, but my recollection is we found the old pieces of wood, but don’t know.” Harrison testifies that that comer had always been preserved and maintained, by a stake at first, and afterwards by an iron pin; and that he has owned lot 11, the southeast comer lot in the block, ever since the block was platted. He says, “The southeast corner of the block has never been lost or destroyed or in dispute.” The commissioners, in addition to the evidence as to the pin being at the southeast corner of the block, tested the location of the pin by measurements and alignments to the northeast comer of block 57 to the southwest corner of lot 11 in block 37, all of which points were original corners, as is shown by the testimony.
It is insisted that the starting point should have been the section corner one square north of block 37,
Counsel argue, if the tests were right, the point of commencement must have been wrong, because they found a surplus “on the east side of the east half of' ninety-one hundredths feet, while on the west line of the east half it is only fifty-five hundredths, a difference of thirty-six hundredths in one hundred and twenty-nine and five tenths feet.” Such a result does not necessarily follow. Grout, one of the commissioners, testifies touching this surplus, over the twenty-four feet, as follows: “Originally these lots were supposed to be twenty-four feet. That was the intention; but the ground was rolling, and considerable grass. Harrison was very anxious to get these corners and measurements exact. We had a link chain, which you can’t depend on hardly an hour at a time. We used our twenty-four foot measure after we got the two hundred and sixty-four feet with the link chain. Then we made measurements, and set the pins out at
The judgment below is affirmed.