29 Minn. 49 | Minn. | 1882
This is an action of ejectment. The plaintiff is the owner of lot 5, in block 1, of Irvine’s addition to St. Paul, as designated on the recorded plat thereof. The defendant is the owner of lots 8 and 9 in the same block. The following diagram represents the block, and the size and position of the lots in it, as shown by the plat:
' The matter in controversy is the proper location of the line between lots 5 and 8.. The defendant is in possession to the line found by measuring .the width of lots 8 and 9, as marked on the plat, from the easterly line of the block, (which is an old, well-established claim-line, and the easterly line of the addition,) claiming that the line so found is the proper westerly line of lot 8. The plaintiff claims that such line cuts off a portion of the rear of lot 5, 18.73 feet on the northerly line, by 12.61 feet on the southerly line thereof; and her claim is founded upon the line between lots 5 and 8, as actually surveyed and staked out on the ground. The land embraced within the addition was originally owned by John E. Irvine, who, in May, 1857, caused it to be surveyed and platted as an addition to St. Paul, and the plat to be recorded in the office of the register of deeds. Such plat had a certificate of the surveyor thereon as follows: “I certify that the. annexed diagram and description are correct, and as surveyed by me. St. Paul, M. T., May 25, 1857. Geo. H. Belden, Surveyor.”
On the trial, evidence was given in behalf of the plaintiff, tending to show that in this survey the location of the lines was marked on
Lot 8 was conveyed by Mr. Irvine, in July, 1858, to one Fowler, from whom the defendant derives title; the deed of conveyance describing it as lot 8, in block 1, as designated in the plan or plat on record in the office of the register of deeds for Eamsey county. Mr. Irvine conveyed lot 5 to a party through whom the plaintiff derives title, in July, 1862, by a similar description. The question is whether, in locating the westerly line of lot 8, the distances in the recorded plat shall prevail, or the stakes set in the ground in making the survey referred to on the plat. The court charged the jury that if, in making this survey, the lots were staked out on the ground, the stakes must control without reference to the distances marked upon the plat; that the stakes are to be regarded as controlling monuments; and, if they were afterwards removed, the point where they were placed may be shown, and is to govern, — to which instruction the defendant excelled.
The authorities are many, and, so far as we can discover, unanimous, in support of the rule given to the jury by the learned judge of the court below. Penry v. Richards, 52 Cal. 496; Fleischfresser v. Schmidt, 41 Wis. 223; Marsh v. Mitchell, 25 Wis. 706; Hiner v. People, 34 Ill. 297; Twogood v. Hoyt, 42 Mich. 609; Pike v. Dyke, 2 Me. 213; Brown v. Gay, 3 Me. 126; Williams v. Spaulding, 29 Me. 112; Jackson v. Cole, 16 John. 256; Jackson v. Freer, 17 John. 29. The course of reasoning upon which these cases proceed is briefly as
Order affirmed.