Richardson v. Bohney, 114 P. 42

114 P. 42 | Idaho | 1911

SULLIVAN, J.

The unsatisfactory condition of the record in this case as well as the uncertainty of the evidence it discloses convinces us that the ends of justice can be more satisfactorily and effectively met by ordering a new trial than by affirming the judgment in the condition in which the case comes before us. We have consequently concluded that a reversal of the judgment should be ordered and a new trial granted.

In doing so it is only necessary to make the following observations : In the first place, we do not think there was any error in overruling the demurrer.

In the second place, the effort of the parties on a new trial should be directed toward the ascertainment of the true line of the government survey as it was originally made on the ground, and not as to the contention among surveyors as to the correctness of the survey, or anything of that kind. ‘1 The purpose of a resurvey subsequent to the taking of title by purchasers and settlers,” as stated by this court in Bayhouse v. Urquides, 17 Ida. 290, 105 Pac. 1066, “is to ascertain the lines of the original survey and the original boundaries and monuments as established and laid out by the survey under which the parties originally procured their titles. (Martz v. Williams, 67 Ill. 306.) On such resurvey or re-established boundaries and monuments the question of the correctness of the original surveys cannot enter into the matter at all, and is a matter that does not concern the surveyor, and is not a question to be ascertained by him.” The rule there announced is one that should govern the court in ascertaining the correct boundary line between the parties in this case.

In the third place, if it should be ascertained that any of the parties to this action entered upon land which was government land and which did not in fact belong to them, and grow crops or place valuable improvements thereon, the question of the ownership and right of removal of such crops or improvements should be determined by the rule announced by this court in Bingham County Agricultural Assn. v. Rogers, 7 Ida. 63, 59 Pac. 931, wherein the court said: “We think it is the undoubted rule of law that where a person has in good faith entered upon the public lands of the United States, and made or caused to be made valuable improvements thereon, although his right to make entry of such lands under the land laws of the United States may be defeated, he is not by reason thereof deprived of his property in such improvements, and is entitled to remove them npon reasonable notice, after the question of title has been finally settled. ’ ’ The rule will apply to growing crops, at least up to the extent of their value at the time the interest of a rightful entryman or purchaser attaches.

For'the foregoing reasons, the judgment will be reversed, and the cause is hereby remanded for a. new trial. Costs awarded in favor of appellant.

Stewart, C. J., and Ailshie, J., concur.

Petition for rehearing denied.