115 Iowa 643 | Iowa | 1902
Plaintiff owns the north and defendant the south of the quarter section of land above described. A controversy having arisen between them over their division line, plaintiff commenced this action for the settlement pf the dispute, under the provisions of the Code relating to the establishment of disputed corners and boundaries. A commissioner was appointed “to survey, locate, and establish the boundary line between plaintiff and defendant, and to locate and establish the true corner at the east end of said boundary line.” Pursuant to this authority, the commissioner proceeded to take evidence, make a survey, and establish the boundary and comer in dispute. From his report it appears that, on account of the uncertain and contradictory character of the evidence, he was unable to determine the true northeast corner of section 7; that is, the corner common to1 sections 5, 6, 7 and 8. He also states in this report that he went north to the northeast comer of section 6, where he found an original government comer, which was well established; that he then commenced at the quarter comer between'sections 7 and 8, which was also well established, and ran north, with proper variation of the needle, to the said northeast corner of section 6; that he then divided the distance between these two points according to the regulations of the general government, found the quarter
Testimony was adduced in support of plaintiff’s motion tending to show that the northeast corner of section 7 was not in dispute, but was clearly established; and he asked that the court establish the corner in accord with this evidence, or re-submit the matter to the commissioner, with directions to use that as a basis for his survey, instead of the northeast corner of section 6. The defendant also offered evidence, which included the testimony of the commissioner, who was a surveyor, tending to show that tire original northeast corner of section 7 was not where plaintiff claimed it to be, but at a point about 14 feet north and west of the corner claimed by plaintiff. The sectional corner claimed by plaintiff is known as the “Heaton Corner,” and the one claimed by the defendant is known as the “Jacobs Corner.” Plaintiff now contends that the evidence shows without dispute that the Pleaton corner is the one originally established by the government surveyors, and that the commissioner’s report
Further claim is made that the trial court should have established the Heaton corner as the true one, and that, as it struck out that part of the report establishing a corner at the northeast of section 7, there was no basis for any report, and it should have been set aside.
The real point for which appellant contends, we apprehend, is that both the commissioner and the trial court erred in not accepting plaintiff’s evidence to the effect that the Heaton corner was the one originally fixed and located by the government surveyors. The report filed by the commissioner shows that he did not adopt either the Heaton or the J acobs corner, but ran a line ,of his own, and found the true corner was about midway between the two points. The record before us shows a decided conflict in the evidence regarding the original government corner. Some of the witnesses say it was at the Heaton corner and -some say it was at the J acobs corner, and some say it was at neither place.- Surely, the commissioner was justified in reporting that the evidence was contradictory, and that he was unable to find tire true corner. The case made before the court on plaintiff’s motion is not materially different on this point from that made before the commissioner. It is no doubt strengthened by evidence tending to show that the so-called “Jacobs Corner” was founded on a mistake, but, after all is said that may be on this question, there was a manifest conflict in the evidence before the trial court regarding the integrity of the Heaton comer, and we are not justified, under ■such circumstances, in interfering with, the conclusion reached by it. That court saw and heard the witnesses, and was in a much better position than we are to weigh their •evidence.
There is no such showing in this case as will justify us in reversing the action of the trial court. — Aeeirmed.