77 N.W. 601 | N.D. | 1898
The parties to this action own adjoining farms, both situate in the same section, plaintiff’s being the southwest quarter and defendant’s the southeast quarter. The real, dispute is as to the proper location of the boundary line dividing their farms. The tract in controversy consists of a narrow strip about 19 feet wide, and in quantity about one-half acre. Both parties agree upon the
The following was also excepted to: “The question of fact then, gentlemen of the jury, to be submitted to you is as to where the line between these two contending parties rest, bearing in mind that the line as fixed by the surveyor at this time is presumptively correct, and the burden of proof falls on the defendant to show that it is incorrect, and not according to the government survey.” Herein the Court erred. The correctness of the line fixed by the county surveyor, so far as it was based upon courses and distances, and in the absence of the original quarter section corner, was not in dispute. The real issue was the existence or nonexistence of the original quarter section corner. This was a pure question of fact for the jury, and upon its determination on that one point confessedly the one party or the other would prevail on the question of ownership of the tract in dispute. By the instruction given, the jury were directed, in effect, not to weigh his evidence for what it was worth to aid them in determining the point in issue, — that is, the location of the disputed corner and line, — but to take his determination on that point as presumptively correct. This was wrong. We refer to his testimony in the language of the South Dakota Supreme Court in Arneson v. Spawn, 49 N. W. Rep. 1066, a similar case: “It was simply the evidence of a witness. Its probative value was not fixed by the law, as in the case of his official return, but went to the jury, like any other evidence.” It is well settled that bounds and starting points are questions of fact to be determined by testimony, and surveyors have no more authority than other men to determine them upon their own notions. Cronin v. Gore, 38 Mich. 381; Case v. Trapp, 49 Mich. 59, 12 N. W. Rep. 908. Campbell, J., speaking for that Court in Stewart v. Carlton, 31 Mich. 269, said: “It appears to have been supposed that surveyors are competent not only to testify to measurments and distances, but- also to pass judgment themselves, and on information of their own choosing, upon the position of lines and starting points. * * * This is a very dangerous error. The law recognizes them as useful assistants in doing the mechanical work of measurement and calculation, and it also allows such credit to their judgment as belongs to any experience which may give it value in cases where better means of information do not exist. But the determination of facts belongs exclusively to Courts and juries. Where a section line or other starting point actually exists is always a question of fact, and not of theory, and cannot be left to the opinion of an expert for final decision.” The same judge, in the later case of Gregory v. Knight, 50 Mich. 61, 14 N. W. Rep. 700, expressed himself in language equally strong: “No one can be disturbed in his estate without the right to have his rights determined by legal process. * * *