Spawr v. Johnson

49 Kan. 788 | Kan. | 1892

Opinion by

Simpson, O.:

The material facts are, that in 1880, William Johnson, the defendant in error, settled upon and preempted the southwest quarter of section No. 21, township 32,«range 9 west of the sixth principal meridian, in Harper county. His settlement and preemption were made in accordance with linesj boundaries and corners as fixed by the original government survey, made in 1871. Spawr, the plaintiff in error, is the owner of the southeast quarter of section No. 20, in the same township and range. The subject-matter of the litigation is a strip of land 13 rods wide, east and west, and 160 rods long, north and south, which Johnson claims as a part of his quarter-section. According to the original government survey, this strip of 13 acres belongs to Johnson ; but it is claimed that in the year 1884, the proper land officers ordered a resurvey of the land in that locality, and this survey is called the Tweedale survey, and by it this strip belongs to Spawr, the plaintiff in error.

The question is, Which of these two surveys shall govern — the original, or the survey made 13 years after by Tweedale? There is substantial agreement as to the facts. At the time of the first settlements all witnesses agree that many of' the section and half-section corners established by the survey of 1871 were plainly visible. It is established that at the time Johnson took his land there was a government corner plainly visible at the southwest corner, one at the northwest and one at the southeast corner of the section in which his land is situate. His final certificate and patent were issued with reference to the lines, boundaries and corners of the survey of 1871. This survey had been approved by proper authority and certified to the local land office. Under these circumstances, it seems too plain for argument that Johnson is entitled to the land. After the government parted with its title and it had been vested in the settlers, no officer of the land department had the right to order or approve a resurvey that changed the boundaries of the specific parcels of land to which the various settlers had title, in the absence of any claim or showing that fraud had been practiced by them or some one in their interest. Section 2396 of the revised statutes of the United States provides: “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 oi*subdivisions for which they were intended.” This section was in force at the time Johnson preempted his land and his patent was issued, and gives him a clear legal right to insist on the existing lines and boundaries as established by the original survey.

Another view can be taken, and that is that the location oi the corner stones is a question of fact about which there was some conflict in the evidence, and the trial court having decided in favor of Johnson, and there being some evidence to sustain the finding, we will not disturb it. It seems to us from the recitations in the record that the weight of evidence was with Johnson at the trial.

We recommend that the judgment be affirmed.

By the Court: It is so ordered.

All the Justices concurring.