112 N.W. 967 | N.D. | 1907
This is an appeal from an order of the district court •of Richland county denying plaintiffs motion made in the alternative, for judgment notwithstanding the verdict or for a new trial The action was brought to recover the possession of and to quiet title to a small strip of land claimed to be a portion of the southeast quarter of section 31, township 130 north of range 52 west, also to recover damages for its use and occupation. The real controversy between these parties arises over a dispute as to the correct location of the boundary line between the southeast and the southwest quarters of said section; plaintiff owning the former, and defendant the latter. Plaintiff acquired title to the southeast quarter through various mesne conveyances from the patentee in a patent from the United States, being Exhibit B, dated October 14, 1884, and defendant acquired title to the southwest quarter directly from the govern
Plaintiff’s counsel contend, as we understand them, that the plat returned to the general land office by the surveyor general, and not the original survey or the field notes thereof reported by the surveyor general, control as to the location of the quarter section line in question, and they advance a very ingenious and plausible argument in support of their contention. They argue that the lands embraced in the sections lying adjacent to the township lines on the west of each congressional township, as well as the sections lying south and adjacent to the north lines of such townships, being the west and north tier of sections in each township, are granted by the government with reference to the plats returned by the surveyor general, and not with reference to the monuments established by the surveyor in the field, and that the plat of this section shows that the southeast quarter, being plaintiff’s quarter, is a full quarter containing 160 acres. They base this argument upon the premise that the lands embraced in the west and north tiers, being fractional sections, are governed by a different rule than the other lands in the township,
The authorities seem to be unanimous in holding to the doctrine adhered to by this court in Radford v. Johnson, 8 N. D. 182, 77 N. W. 601, and, as before stated, no distinction seems to have been made in the rule with reference to the location of lost comers between fractional sections and sections not fractional. Where such original monuments can be located definitely, they control absolutely over all other evidence, including plats and field notes. McGray v. Monarch El. Co., 16 S. D. 109, 91 N. W. 457; Arneson v. Spawn, 2 S. D. 269, 49 N. W. 1066, 39 Am. St. Rep. 783; Dowdle v. Cornue, 9 S. D. 126, 68 N. W. 194; Tyler v. Haggart (S. D.) 102 N. W. 682; Thayer v. Spokane Co., 36 Wash. 63, 78 Pac. 200; Unzelmann v. Shelton (S. D.) 103 N. W. 646; Washington Rock Co. v. Young, 80 Pac. 382, 29 Utah 108, 110 Am. St. Rep. 666; Kleven v. Gunderson, 104 N. W. 4, 95 Minn. 246; Stonewall Phosphate Co. v. Peyton et al., 39 Fla. 726, 23 South 440; Wheeler v. Benjamin, 136 Cal. 51, 68 Pac. 313. The opinion in Stonewall Phos. Co. v. Peyton, supra, contains a very clear statement of the rule as we understand it to be, and we quote therefrom as follows: “The grant of all lands presupposes an actual survey of them, and the patent muff be considered as conveying the land as actually surveyed. Therefore, when it cari be shown that a line was actually run, or division made, by the surveyor in surveying the land, and that such line or division was marked by corners or natural objects, and such survey is established, the grantee in a patent will take according to such actual survey, notwithstanding any mistake in description as to courses and distances contained therein, or the quantity of land stated to be conveyed. It is a familiar rule that courses and distances must give way to natural as well as artificial objects, when they are inconsistent. * * * The quantity of land contained in a patent may be considered as ascertaining the extent of the grant in area, but cannot control the actual boundary limits of the land as located on the ground by the original government survey. This is in accord with' the letter and spirit of section 2396, c. 9, Rev.
See, also, Ogilvie v. Copeland, 145 Ill. 98, 33 N. E. 1085. We quote from page 111 of 145 Ill., page 1087 of 33 N. E., as follows: “It is true, it is required by the United States statutes that ‘the boundary lines actually run and marked in the surveys, returned by the surveyor general, shall be established as the proper boundary lines of the sections or subdivisions, for which they were intended ; and the length of such lines, as returned, shall be held and considered as the true length thereof.’ So, also, it requires ‘that the corners marked in the surveys returned by the surveyor general, shall be established as the proper corners of sections or subdivisions of sections, which they were intended to designate.’ Section 2396, Rev. St. U. S. And when the measurement of the line as returned does not agree with the distance between the corners thus establish
Several of the foregoing authorities, it will be noticed, involved lands in what are known as fractional sections. But this fact was not considered important. We therefore conclude that the trial court -did not err in receiving evidence tending to show the location of the original quarter-section post on the south line of said section at a point different from that shown by the plat; nor did it err in denying plaintiff’s motion for a directed verdict and for judgment notwithstanding the verdict.
At the close of the testimony, the court directed a verdict in defendant’s favor, and this is assigned as error, as is also the court’s ruling in denying a motion made by plaintiff, in the alternative, for judgment notwithstanding the verdict or for a new trial. These assignments are predicated upon the theory that there was a sufficient conflict in the testimony as to the location of this quarter section monument by the deputy surveyor to require a submission of the question to the jury. In this we think counsel’s contention is clearly correct. We will not detail at length the testimony produced by plaintiff tending to establish the location of such monument at the point contended for by him, but suffice it to say that, from a careful reading of the record before us, we are convinced that there was a substantial conflict in the testimony upon this point, and hence that the court erred in making the rulings complained of. We do not think the case comes within the rule invoked by respondent’s counsel to the effect that known physical facts must control over all other testimony. It is undoubtedly true that no amount of evidence will suffice to raise a question for the jury, when such evidence is opposed to known physical facts or phenomena; but we fail to see how this rule is applicable to the facts before us. The testimony in behalf of the plaintiff tended to establish the fact that the -quarter post in question was originally located at a point about 40 chains west of the southeast corner of -the section, while that of the defendant tended to show that it was located at a point 40 chains west of the southwest corner of said section, and it was for the jury to say, under all the evidence, what the fact was. See Black v. Walker, 7 N. D. 414, 75 N. W. 787, in which a very similar question was involved, and where the same conclusion was reached. In that case there-was a dispute as to a township boundary line, and, after referring to the evidence the court said: “Appellants insist
For the errors in directing a verdict and in denying plaintiff’s motion for a new trial, the order appealed from must be reversed, and a new trial ordered.