Reinert v. Brunt

42 Kan. 43 | Kan. | 1889

The opinion of the court was delivered by

Horton, C. J.:

This was a controversy in the court below over the correctness of a survey made by S. H. Brunt, the county surveyor of Lincoln county, of the township line between townships twelve and thirteen, in range nine west, in that county. Hedwig Reinert owns the south half of the southwest quarter of section thirty-six, and George Huhl owns the northwest quarter of section one. The other defendants in error own, also, lands north of this line, and have interest in common with Hedwig Reinert, the appellant in the court below. She claims that her southwest corner as located by the government survey is about thirteen rods south of where the survey made by S. H. Brunt, the county surveyor, established it; that the new survey makes a difference of twelve or thirteen acres in the quantity of land in her farm; that no attention was paid by him to any monuments other than the two township corners; that no attempt was made to find the lost corners, and that the field-notes were disregarded.

It appears that several years ago, W. Bishop, who has been a county surveyor of Lincoln county for ten years, surveyed the disputed line between sections thirty-six and one. Upon the trial, the principal contention seemed to be whether the lines and corners established by Bishop were in accordance with the government lines and monuments. On the one side it is claimed that the Bishop survey was a correct line; on the other, that the Bishop survey was erroneous, and therefore that the survey of Brunt was the true one. • The great preponderance of the evidence tended to show that the true section corner of the northwest corner of section one was originally established at or near a prairie-dog hole, and that the quarter-corner was west of the creek. There was some evidence, however, tending to show that Bishop did not sufficiently examine or identify the stone at the dog-hole as a government monument; that the stone on the west side of the creek was a sandstone, and not the limestone described in the field-notes. Then, again, Robert Fames testified that he knew of a stone as a corner, which had been broken off, on the east side of the creek. This evidence tended to contradict, in a slight way, the evidence given in support of the correctness of the survey of Bishop. It is probable that Fames was mistaken, or did not fully understand the import of the question. Therefore if the sole matter for our determination was whether the survey of Bishop was in all respects in accordance with the government monuments and corners, we would be compelled to follow the general finding of the trial court.

We think, however, that there is not sufficient evidence in the record to sustain the finding of the trial court in its approval of the report or survey of Brunt. Whatever may be said as to the cornel’s testified to by Bishop, there is not sufficient evidence in the record to show that the survey of Brunt was correct. The report of the survey on its face shows that Brunt only followed township corners and disregarded the field-notes. The report says that in running his line west, he found no section corners, but does not show he sufficiently attempted to search for the original or lost corners between the township corners. He found the township corners between ranges eight and nine, and between nine and ten, then ran a straight line from one to the other, and on this line placed the quarter and section corners between thirty-six and one. He did not take any evidence in the community or neighborhood as to the lost lines or corners, and paid no attention to hunting for monuments or corners, other than the two township corners. He says in his report that “ I based my survey by these corners, and not by the government field-notes.” In his testimony Brunt attempted to explain his disregard of the field-notes by saying he merely disregarded the variations given in the notes.

While distances and bearings must be disregarded if the monuments on the ground for the corners as originally established can be found, or if lost, their original location can be ascertained, a surveyor should not disregard the field-notes merely to make a straight line between township corners. The township line is not necessarily straight in all cases. (McClintock v. Rogers, 11 Ill. 279; McAlpine v. Reicheneker, 27 Kas. 257.) As affects the disputed corners, the field-notes of the government survey are as follows:

“From the corner of townships 13 and 13 S., R. 8 and 9 W., I run S. 89° 54' W. on a true line between sections 1 and 36. Ya. 11° 40' E.

“33 chains — A creek 30 links wide runs N.E., narrow belt of timber on banks; enter creek bottom on left side.

“40 chains — Set limestone 18x15x4 for sec. cor.

“75 chains — Leave bottom and enter upland; bears N.E. and S.W.

“80 chains — Set limestone 20x10x5 for cor. to secs. 1, 2, 35 and 36.”

The field-notes mention the creek and describe the quarter-corner as west of it. The notes say that the course of the creek where the line crosses is northeast. Brunt says where he crossed the creek the course is northwest. Again, Brunt in his survey did not follow the directions stated in Everett v. Lusk, 19 Kas. 195. His survey was not as extensive as it should have been under the circumstances, in order to insure accuracy to a reasonable certainty. He should have reestablished all missing corners from all the nearest known original corners, in all directions, following section lines. (See also McAlpine v. Reicheneker, supra; Comp. Laws of 1885, ch. 25, §§161-165.)

Further, Brunt in his survey seems to have wholly disregarded the rule in Tarpenning v. Cannon, 28 Kas. 665, “that a boundary-line long recognized and acquiesced in is generally better evidence of where the real line should be than any survey made after the original monuments have disappeared.” Also, 34 Kas. 595.

The judgment of the district court will be reversed, and the cause remanded for a new trial.

All the Justices concurring.