76 Minn. 496 | Minn. | 1899
This action was brought under Laws 1893, c. 68 (G. S. 1894, §§ 5823-5829), to have the boundary line fixed and established between the lands of the plaintiff and those of the defendant. The plaintiff alleged that he owned the southwest £ of the southeast 7}, and the west -J- of the southeast J of the southeast Jf, of section 33, township 36, of range 23, and that the defendant owned the northwest £ of the northeast and the west J of the northeast J of the northeast J of section 4, township 35, of range 23, according to government survey. It is the boundary line between these two tracts, which plaintiff asked to have established. It will be observed that this boundary line is the east and west township line between two' government townships, the land alleged to be owned by the plaintiff lying in the north, and that of the defendant in the south, township. The main contention between the parties is as to where the section corner between sections 33 and 34 in township 36 and sections 3 and 4 in township 35 was located and established by the government survey, the defendant contending that it was located at a point in the middle of the highway 189f feet north of the point where plaintiff claims it was.
As a further and second defense the defendant alleged that, irre
Upon the issue as to the location of the government section corner as fixed ,and established by the government surveys, the court found it to be substantially as claimed by the plaintiff. It is assigned as error that this finding was not justified by the evidence, in that the court, in establishing and fixing the line and corner., did not follow the rules laid down by the statutes of the United States and of this state. See R. S. (U. S.) §§ 2395-2399, and G. S. 1894, §§ 833-836.
The trial court was in error in striking out the “second defense” set up in the answer. The object of the act of 1893 is to provide a method of establishing disputed boundaries between adjoining landowners, and thereby determining their respective rights of property, and not merely to ascertain where the original government lines and corners were located. If the inquiry is to be limited to the latter, it is apparent that in many cases it would determine no right whatever; as, for example, where the parties by their acts have mutually agreed on and adopted a boundary line different from the original government line, or where one of them had, or claimed to have, acquired title by adverse possession to land on the other side of the government line. Hence section 5829 of the statutes provides that
“The court shall try and determine any adverse claims in respect to any portion of the land involved which it may be necessary to determine for a complete settlement of the boundary lines involved.”
The meaning of this language is too plain for argument. But what occurred subsequently rendered this error without prejudice. Notwithstanding that the so-called “second defense” had been
The disputed section corner was what is termed a “lost corner,” the monument or stake set by the government surveyors having been removed or destroyed, and there being no direct evidence as to where it had been placed. Hence it was a case where resort must be had to the field notes of the government surveyors. This corner was established in 1849 by the surveyors who divided the territory into townships, and became a section corner when the townships were subdivided into sections. E. S. (U. S.) § 2395, subd. 2. Township 35 was subdivided in 1854, and township 36 in 1857. The government field notes called for two witness or bearing trees at the disputed corner, and the evidence on behalf of the defendant on that issue consisted exclusively of testimony tending to identify an existing tree as one of these bearing trees by witnesses who testified to having seen in former years the marks of the government surveyors upon it. If this was in fact one of the witness trees, the courses and distances from it contained in the government field notes would locate the section corner where defendant claimed it to have been. There were no government marks upon the tree at,the time of the trial, or for at least three years previously. The second witness tree called for was not found, and its disappearance, if it ever existed, was wholly unaccounted for. No one testified to having ever seen it, or any evidences of its existence. We do not think that the existing tree was conclusively proven to have been a witness tree; but, even if it had been, the courses and distances from it contained in the government field notes would not have been conclusive as to the location of the section corner, or necessarily entitled to any more weight than other courses and distances contained in the field notes.
The evidence on behalf of the plaintiff consisted of the testimony of the county surveyor, who made a survey for the purpose of locating the disputed section line and corner in 1895, — 46 years after the line was run by the government surveyors. The court accepted his survey as correct, and fixed and established the government line and corner accordingly. This witness had and used the government field notes in making his survey, but the defendant claims that he did not follow them. Finding neither monument nor evidence, as he considered, of witness trees, at or near the disputed section corner, he went east one mile, and found the section corner at the northeast corner of section 3. There is no conflict in the evidence as to the location of this corner. It is true that, it being in a lake, no monument had been erected at the actual corner, but the bearing trees and meander post were found giving the course and distance to the section corner. This was the first corner to be found east of the disputed corner. To the west the first corner to be found was the quarter post between section 32, township 36, and section 5, township 35 (which was a mile and a half west of the disputed corner), there being neither monument nor
We are of opinion that this evidence amply justified the findings of the court, and we do not see wherein the rules of law for establishing lost lines or corners were materially violated or disregarded. It is evident that there must have been a mistake in chaining on the part of the surveyor who subdivided township 36, but, if defendant’s claim is sustained,1 it would increase this mistake from 4 rods to nearly 16 rods in running one mile, which is hardly supposable. And, as suggested by the trial court, to locate the corner where defendant claims would involve three other mistakes: (1) A mistake of the surveyor who ran the township line in running it 189f feet too far north in a distance of one mile; (2) running it too far south in the next mile and a half a distance which, by a re
The objection made to the county surveyor’s mode df re-establishing the lost corner is that in running the east and west line from the northeast corner of section 3 to the quarter post between sections 32 and 5 he entirely disregarded the variations given in the field notes by running a straight or true line, in the first mile of which the variation was' 8.30 degrees and on the remaining mile and a half 8.37 degrees, whereas the variations given in the field notes were 11 degrees and 11.25 degrees, respectively. But it must be observed that this was a township line, which by law is required to be a true or absolutely straight line along the entire length or breadth of the township, and was neither a base nor a correction line. Moreover, the mere fact that the variation differs on different parts of a line does not prove that it is not a true or absolutely straight line, for it is a matter of common knowledge and experience that the variation of the needle from the true meridian changes materially within very short distances from local causes. The manual of surveying instructions for the survey of the public lands prepared under the instructions of the commissioner of the general land office in 1894 requires that
“The meridianal boundaries of townships will be run from south to north on true meridians, with permanent corners at lawful distances; the latitudinal boundaries will be run from east to west on random or trial lines, and corrected back on true lines.”
And the circular of the general land office on the restoration of lost or obliterated corners (1896) provides that
“The two nearest known corners on the township line, the same not being a base or a correction line, will be corrected, as in case No. 1, by a right line, and the missing corner established by proportionate distance, as in that case.”
If we understand the testimony correctly, the lost corner was re-established in strict conformity with this “rule,” conforming as nearly as practicable to the original field notes. It must also be
Assuming, without deciding, that instead of running a right or straight line between “the two nearest known corners” (which I personally think was the correct method) he should have run the line at the same variations given in the field notes, it is possible that his testimony shows that the disputed corner should have been located, not where defendant claims, but between one and two rods north of where the witness did locate it; still this error, if error it was, was without any substantial prejudice to the defendant, for the reason that the court awarded him a strip a rod and a half wide north of the government line as established, on the ground that he had acquired title to it by adverse possession.
Judgment affirmed.
An application for a reargument having been made, the following opinion was filed June 20,1899.
In their application for a reargument the appellants Danielson, two of the additional parties to the action brought in by. the order of the court, who also tendered the issue of title by adverse possession, call attention to the fact that, after this defense had been stricken out of their answer, no such issue was, as to them, tried by consent, or determined by the court. Their lands are bounded on the north by the disputed town line, and are, respectively, situated east and west of the lands of the original plaintiff and de
Application denied.