| Iowa | Apr 21, 1885
The answer avers “that on May 6, 1881, the plaintiff filed her petition at law, in the distinct court of said county, relative to the present controversy” It then sets out the finding and decision of the court, in which the plaintiff’s petition was dismissed; upon the ground that there did not appear to be any such loss of boundary or controversy between the parties as to justify the appointment of a commission. It does not expressly appear from the answer that the parties were the same as those now before the court, but we infer from the finding of facts in the original case, and the manner in which the present case is presented, that the parties were in fact the same. At all events, no objection is made to the answer upon that ground, and we shall not raise the objection ourselves.
We have, then, a case where the appointment of a commission is asked for the purpose of establishing a lost boundary, and the plaintiff, by her demurrer to the answer, concedes
The only real question in the case appears to be as to whether, in the matter of a petition for the appointment of a commission under the statute above referred to, the court has jurisdiction to look into the nature of the controversy, and dismiss the petition, if the controversy does not appear to be such as to justify the appointment of a commission. In answer to the question, we have to say that we think it has such jurisdiction. The statute provides that notice shall be served upon the owner or owners of the adjacent tract or tracts before the application can be heard. The other parties in interest have a right, then, to appear at the hearing upon the application; and we canuot think that the hearing contemplated pertains merely to the question as to who shall constitute the commission. It is true, the statute provides that “upon the filing of a proper petition, and proof of due notice as aforesaid, the court shall appoint a commission,” etc. It might, therefore, be contended, and we think with much reason, that the court, in order to determine the character of the controversy, should not be required to go outside of the petition. While it was held in Harrah v. Conley, 82 Ill., 48" court="Ill." date_filed="1876-06-15" href="https://app.midpage.ai/document/harrah-v-conley-6958922?utm_source=webapp" opinion_id="6958922">82 Ill., 48, that the other parties in interest might appear and file an answer, we are not prepared to say that under our statute an answer would be allowable for the purpose of raising the question as to the nature of the controversy. The statute seems to be imperative in requiring the appointment upon the filing of a proper petition. But it does not follow
But it cannot be denied that there may be a disputed boundary, and yet the appointment of a commission not be justifiable. In the matter before us, the court, in the original proceeding, seems to have thought that there was no disagreement as to the facts which should govern the question as to the original boundary, but a disagreement as to the rule of law which should be applied to conceded facts. Now, where such is really the case, there is no ground for the appointment of a commission. The sole office of a commission is to ascertain facts. We may go further and say that there may be a case of disputed boundary where the dispute pertains solely to facts, and yet where the appointment of a commission would not be proper. There seems to have been a dispute of that kind in the original case. It did not pertain to the question of original boundary, but to the question of boundary as determined by the alleged adverse possession of one of the parties. Now a commission could not properly be appointed to determine a question of disputed adverse possession. Where the question in dispute is that of adverse possession, either party has a right to a jury. This was held in Gates v. Brooks, 59 Iowa, 514. A commission has its proper place where a boundary, as called for by the deeds under which the parties hold, is to be discovered by the application in the field of the technical knowledge and practice of surveying, and where each party’s claim is supposed
Strictly, then, we think that the petition should state the facts in dispute sufficiently to 'enable the court to determine the nature of the controversy. If the court should wrongly determine it, and dismiss the petition .when it should liavebeen entertained and the commission appointed, the plaintiff would have his remedy by appeal. It would not, we think, be his right to turn around and file another petition upon the-same ground In our opinion the demurrer to the defendant’s-answer was rightly overruled.
■ Affirmed.