114 N.W. 478 | N.D. | 1907
The plaintiff is owner of the N. E. %. of section 27, in township 149 N., of range 57 W., in Nelson county, and the controversy in this case arises over the lines dividing the plaintiff’s land from the S. E. J4 owned, and the N. W. J4 of the same section occupied, by the defendant. The action is brought for damages for trespass upon strips along the south and west Sides, claimed by plaintiff to be a part of the N. E. and there
'In addition to the errors specified, which we have mentipned, error is assigned in the granting of the defendant’s motion for a directed verdict, and in entering judgment dismissing the action. The courts of this state in matters of this kind are governed by the laws of the United States, and the instructions issued by the officers thereof, in charge of the public land surveys. Rev. Codes 1905, section 2540. Section 2395, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1471], among other things, provides that the public lands shall be divided by north and south lines run according to the true meridian, and by others crossing them at right angles, so as -to form townships of six miles square; that “the corners of the townships must be marked by progressive numbers from the beginning; each distance of a mile between such corners must also be distinctly marked with marks different from those of the corners;” that “the townships shall be divided into sections containing as nearly as may 640 acres each, by running through the same each
Rule No. 147 of the Manual of Surveying Instructions, issued by the United States General Land Office, requires that in making surveys of public lands quarter section corners, both upon the meridional and latitudinal section lines, be established at points equidistant from the corresponding section corners, except (here follow exceptions which have no application to interior sections). The
There was much more testimony showing how the surveyor verified his measurements and the points which he located. It all sufficed to show clearly that he had, as we have indicated, established the four corners of a tract of land one mile square, and the only question to be determined is whether this evidence sufficed to make a prima facie case for the plaintiff. The witness who testified had
We see no merit in the assignments of error on the rejection of the evidence regarding the relative portions into which these lines divided the section, because it is olear from the evidence received that the tract of land outlined was divided by this survey into four equal quarters, so, if it was error to sustain the objections to this testimony, the only purpose of which must have been to make it more clear and distinct to the jury, it was error without prejudice. We see no ground for complaint that evidence was not received showing the cost of the survey, as we are unable to find
We are of the opinion that the plaintiff made a prima facie case, and that the court erred in directing a verdict for the defendant. If the defendant was able to submit evidence showing that the surveyor had been in error in his measurements or in identifying ■the corners, he should have offered it; but on a directed verdict the evidence of the opposite party is to be taken as undisputed, and is entitled to the most favorable construction that it will properly bear, and he is entitled to the benefit of all reasonable inferences-arising from his testimony. Pirie v. Gillitt, 2 N. D. 255, 50 N. W. 710.
The judgment of the district court is reversed, and a new trial granted, for the purpose of assessing such damages as plaintiff may show himself entitled to recover.