53 Ind. App. 203 | Ind. Ct. App. | 1912
— This action was brought by appellee as plaintiff to eject appellant from a small parcel of land described in the complaint consisting of about .43 of an acre. At the time of the commencement of the action the plaintiff owned the east half or the northeast quarter of section 13, township 23 north, range 13 east. The defendant owned
The regulations of the Department of the Interior, which have the force of law, do not permit the interior subdivisions of the congressional townships to be made by the same surveyor who runs the township and range lines, and such interior subdivisions are made at a subsequent time and by a different surveyor. In making this subdivision the surveyor began at the southeast corner of the township and surveyed the east tier of sections first proceeding north. The south line of section 13 would thus be fixed by the survey of the north line of the section immediately to the south, and the stake set at the northwest corner of such section to the south would mark the southwest corner of section 13. In surveying section 13 the government surveyor would begin at the stake set to mark the northwest comer of the section immediately to the south and ran north parallel to the range line for the distance of forty chains and there mark and witness the west quarter corner post, then continuing the line in the same direction forty chains more, he would there set the stake for the northwest comer of section 13. Prom this point it was his duty to establish a line to the northeast corner of said section as established by the survey of the range line. This was done in the following manner as shown by the field notes introduced in evidence. Prom the northwest comer east on random line
The appellant contended that the north line of this section was not straight but that it broke at the north quarter corner and that the northeast corner of the section, its eastern
, If it were shown by the evidence in this case that the plaintiff had occupied a portion of the land north of the section line for twenty years under such circumstances as to give him title thereto by adverse possession, then the north line of his lands would be the north line of the land so adversely occupied regardless of where the section line was originally located. We have carefully examined the record and we find no evidence which could have justified the jury in finding that the plaintiff acquired title by adverse possession up to the line fixed in the verdict. We are equally well satisfied that there is no evidence in the record which would justify a finding that the line in dispute in this case had been established by the mutual agreement of the parties and by occupancy under such agreement. It is apparent that the jury reached its verdict by fixing the lost northeast corner of section 13 at a point on the range line where the same is
The judgment is reversed with directions to grant a new trial.
Note. — Reported in 100 N. E. 84. See, also, under (1) 2 Cyc. 1014; (2) 5 Cyc. 871, 920; (3) 38 Cyc. 1675; (4) 5 Cyc. 876, 955; (5) 16 Cyc. 903; 124 Am. St. 22; (6) 16 Cyc. 934; (7) 16 Cyc. 926, 932; (8) 38 Cyc. 1749; (9) 5 Cyc. 956, 966; (10) 38 Cyc. 1646; (11) 5 Cyc. 971; (12) 38 Cyc. 1809; (13) 16 Cyc. 965, 1042. As to geographical facts of which judicial notice is taken, see 124 Am. St. 32. As to burden of proof generally and on whom it rests, see 135 Ant St. 765. As to conflicts between surveys in determining boundaries, see 22 Am. St. 34. As to invasion by court of jury’s province by instructing on matters of fact, see 14 Am. St. 36. As to control of calls for monuments and lines marked on the ground, see 129 Am. St. 996. As to lines run by government surveyors, see 310 Am. St. 677. As to what burden of proof is, and how it applies, see 135 Am. St. 765; 16 Am. St. 439.