Washington Rock Co. v. Young

80 P. 382 | Utah | 1905

Lead Opinion

A statement of tbe case as above having been made,

BARTCH, C. J.,

delivered tbe opinion of tbe court as follows :

Tbe decisive question in tbis case is whether at tbe close of tbe evidence tbe court erred in refusing to instruct tbe jury to return a verdict in favor of tbe appellant. We understand tbe contention of tbe appellant to be that there is no conflict in tbe evidence as to tbe material facts which must control in tbis controversy, that tbe law applicable to those facts gives him an undoubted right to tbe thing in dispute, and that therefore tbe question involved was one of law for tbe court. A careful examination of the evidence shows tbis contention to be well founded. More than thirty years ago, as appears by the proof, the patentee made application to the land office to have the land in dispute surveyed, and thereupon Mr. Dickert, as deputy United States mineral surveyor, was instructed by the surveyor general to make the survey. Pursuant to such instructions, Mr. Dickert surveyed all the lines and set all the corner monuments necessary to segregate the land referred to by the application from the public domain. That is admittedly the original survey, in so far as the land in controversy is concerned. After doing some preliminary surveying, he found a rock monument at point A, a quarter-section comer previously set by Mr. Burr. Prom this point he ran east on a true line, giving each mile eighty chains, and established the southeast corner of section 11 at B,'the quarter-section corner at C, and the southeast corner of section 12 at E, which section embraces the land in question. He also established the comers at P, X, and T, and all the intermediate corners, including K, H, I, and G, but he did not establish the corner at Z. All these corners are represented on the diagram appearing in the statement of facts. At this time the township line on the east side of section 12 had not yet been surveyed. On this survey the entry of the appellant’s land was made and the patent issued, and it included the land upon which the stone quarry is located. About two years later Mr. Perron made a survey of the eastboundary line of section 12. He commenced his survey from a point about four miles below E, and ran a random line north to E; but whether or not he found the monument set at E by Mr. Dickert does not satisfactorily appear from the evidence, which simply shows that he ran a liné between certain “townships to the corner of sections 7, 12, 13, and 18,” without direct reference to a monument. Prom point E, to which he so ran, he proceeded north to W, and thence north, and established the northeast corner of section 12 at Z. Some time later Mr. Pancake made his survey of the north, west, and south boundaries of section 12. In order to re-establish the lost corner at B, the southwest corner of section 12, he also began the survey at a point four miles south on the south boundary of the township, and then from B proceeded to re-establish the other lost corners and lines necessary to locate the appellant’s land. In establishing the lost corners and lines, as will be observed, neither Mr. Herron nor Mr. Pancake followed the survey of Mr. Dickert. They evidently paid no attention to the corner at point A, although the monument at that corner remains still at the place where it was' set by the original survey. Instead of retracing the original survey from an original known corner with the aid of the field notes, they chose to commence at a point in an entirely different direction from E, four miles therefrom, and then from such point, disregarding almost wholly the original survey, attempted to reestablish the lost corners and lines. The lost monuments thus re-established, it appears, controlled in the survey of Mr, Anderson, the respondent’s surveyor, whereby the stone quarry in dispute was transferred from the appellant’s land to that of the respondent by locating the boundary line between the two tracts on the west side of the quarry. The corner at Z, though not established until several years, after the original survey 'was made, he assumed to be correct, -instead of the one at A, and thus made the survey, with the result indicated. He says, “Either the point A or Z is wrong,” and assumes A to be wrong, although the corner at.A was established by the first survey, and yet remains in the same place. By doing so, he not only disregarded point A, the solemn witness of the original survey, but also the field notes, which show the courses and distances of that survey from that corner, in violation of the principle that, where the monuments and lines of an original survey are lost, the field notes of such survey, and the courses and distances shown by them, may be resorted to, as the best evidence remaining, in reestablishing such monuments and lines. The fact, if it be a fact, that, if the Dickert survey be retraced by aid of the courses and distances given in the field notes, it places the corner at E, some distance east of the township line, into another township, can make no difference, under the circumstances disclosed by the proof -respecting lost comers and lines. Such fact, if it be a fact, cannot injuriously affect the rights of the appellant acquired by entry based upon a survey made before the township line was located. If by the original survey the comer at E was set east of where the township line was afterwards located, subsequent surveyors had no right to place it anywhere else. The law is well settled that an original survey of lands, upon the faith of which property rights have been based and acquired, controls over surveys subsequently made which injuriously affects such rights.

The witness Anderson admits the binding effect of an original Survey, and yet in practice he disregarded the very evidence which would admittedly have enabled him to re-establish the lost lines and corners without interference with property rights acquired on the faith of an original authorized government survey, for he admitted in his testimony that if he had commenced his survey at point A, and followed the field notes of Mr. Dickert, the quarry would be in the appellant’s land. That this is true is clear from the survey of Mr. Hardy, who started from point A, and recognized the field notes of the Dickert survey. His survey appears to be a compliance with the rules of law governing such a case. Where the monuments of corners, which, if standing, would fix the boundaries of a tract of land, are lost, as in this instance, but the corner monument, from which the initial survey was made, remains intact, such monument, in the absence of other controlling evidence of the original survey which will protect the property rights acquired on the faith of that survey, and which will be more likely to restore the original lines and monuments, should be resorted to and adopted as the beginning point of subsequent surveys of the Same tract of land. From that point the original survey should be retraced, and the monuments, re-established, with the aid of the courses and distances contained in the field notes of the first survey.

“Original corners, as established by the government surveyors, if they can be found, or the places where they were originally established, if they can be definitely determined? are conclusive, without regard to whether they were located correctly or not.” (5 Cyc., 873.)

In reference to the powers and duties of commissioners and processioners under appointment to establish lost boundaries, it is said:

“The powers of commissioners and processioners extend only to locating and establishing lost or doubtful boundaries, and they can in no event disturb title or rights of possession or establish new lines. In doing this they must follow the mode prescribed by the order or decree of appointment, and from a known and established corner or monument should run out the lines by course and distance according to their original location. They are at liberty, however, to survey whatever lines may be necessary in order to find and establish the true location of the line in dispute.” (5 Cyc., 946; Martz v. Williams, 67 Ill. 306.)

This applies with equal force to subsequent surveyors appointed to re-establish lost lines and comers. Such .surveyors may ■ also, in all cases of this character, consider other extrinsic material evidence, as well as the field notes, for the purpose of determining the exact location of the lost lines and corners of the original survey; and, wherever corner monuments of that survey can be found in place, they must control-over the courses and distances indicated by the field notes, and over any other calls in such notes. This is a binding rale. But “before the rule that monuments control courses and distances can apply, there must be actual, fixed monuments, and the places where they were at the time the deed was made must be determined.” (4 Am. and Eng. Enc. Law, 769.) In Hess v. Meyer, 73 Mich. 259, 41 N. W. 422, it was said:

“If the stakes or monuments placed by the government, in making the survey, to indicate the section comers and quarter posts, can be found, or tbe places where they originally were placed can be identified, they are to control in all cases. When they cannot be found, or if lost or obliterated, they must be restored upon tbe best evidence obtainable wbicb tends to prove where they originally were. For this purpose surveys are made, and tbe lines retraced as near as possible.”

In such cases junior or subsequent surveys are not made to dispute tbe correctness of or to control tbe original survey, but to furnish legitimate proof of where tbe lost lines or monuments were, so as to aid tbe jury in determining tbe exact location of tbe original survey. It seems dear, therefore, that in making such junior surveys tbe original survey should be retraced, when possible. In this instance there appears to be disclosed by tbe record no good reason why tbe subsequent surveyors disregarded point A and the field notes, went over four miles from point E for a starting point,, and made practically a new survey, instead of retracing the old one. An original survey, upon which property rights have been acquired, cannot thus be changed or diminished or obliterated, with so little regard for existing evidence. In Clement v. Packer, 125 U. S. 309, 8 Sup. Ct. 907, 31 L. Ed. 721, it was said:

“It is unquestionably true that a junior survey cannot control or enlarge the dimensions of a senior survey. We understand this to mean that, when the location of a survey is or can be ascertained or determined by its own marks upon the ground — its own calls and courses and distances — it cannot be changed or controlled or enlarged or diminished by the marks or lines of an adjoining junior survey; but when, from the dissappearance of these original landmarks, caused by time and other agencies, from the senior survey, the location of a particular line or the identity of a corner is left in uncertainty or becomes the subject of controversy, then the original and well-establisbed marks found upon a later survey made by tbe same surveyor about tbe same time, and adjoining tbe one in dispute, are regarded as legitimate evidence, not to contest or control, but to elucidate, throw light upon, and thus aid tbe jury in discovering tbe exact location of tbe older survey.”

(1 Dembitz, Land Titles, sec. 4; 5 Cyc., 874, 875; A Am. and Eng. Enc. Law, 787; Goodman v. Myrick, 5 Or. 65; Payne v. English, 79 Cal. 540, 21 Pac. 952; Irvin v. Rotramel, 68 Ill. 11; Clement v. Northumberland Coal Co., 87 Pa. 291; Hubbard v. Dusy, 80 Cal. 281, 22 Pac. 214; Nesselroad v. Parrish [Iowa], 13 N. W. 746; Billingsley v. Bates, 30 Ala. 376, 68 Am. Dec. 126.)

Tbe fact that tbe date of tbe appellant’s patent is not in evidence does not militate against tbe position that it was based upon, and issued with reference to, tbe original survey. Tbe entry was made in tbe land office upon tbe faith of that survey, and when tbe patent was issued it related back to the date of tbe entry. A patent granted by tbe United States is always preceded by a survey, and is understood to refer to the lines actually run on tbe ground. (1 Dembits, Land Titles, sec. 4; Flint & P. M. Ry. Co. v. Gordon, 41 Mich. 420, 2 N. W. 648; Lessee of French v. Spencer, 21 How. (U. S.) 228, 15 L. Ed. 97; Shepley v. Cowan, 91 U. S. 330, 23 L. Ed. 424; Stark v. Starr, 6 Wall, 402, 18 L. Ed. 925.)

Having thus concluded that tbe court, under tbe facts in evidence, ought to have instructed tbe jury to return a verdict in favor of tbe appellant, it is unnecessary to decide any other question presented.

Tbe case must be reversed, with costs, and remanded for further proceedings in accordance herewith. It is so ordered.

McOARTY, J., concurs.

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Concurrence Opinion

STRAUP, J.

(concurring).

I concur in' the reversal of the judgment, but I do not concur upon the ground that the trial court was authorized to direct a verdict.

Point A on the plat in the opinion of the majority court was established by Burr, deputy United States surveyor, in 1856, when making a partial survey of section 111 In'1881 Dickert, deputy United States surveyor, made a partial survey of section 12, and established point E on the township line as the southeast corner of section 12, and one-half mile north thereof, on the township line, established point F. Then running north from point C and D he established points Gr, H, I, and K, marking the boundary between the quarter-sections in dispute. Monuments were placed by him at all these points. In 1884 Ferron, deputy United States surveyor, made a survey starting on the township line “four miles below point E, and came north to E, which monument he found still standing. Running due north from E one-half mile, he found monument F standing, and ran due north another one-half mile, and established monument Z.” Still later, but in 1884, Pancake, deputy United States surveyor, surveyed and established the north, west, and south boundaries of section 12. He also found monument E, established by Dickert, but did not find C, B, or A, and so reestablished them. He did not find M, X, or T, and established those; but he did find Z, established by Ferron. So that we have monument E placed and established by Dickert as the southeast corner of section 12, found by both Ferron and Pancake, and “the comer Z was set from the corner set by Mr. Dickert; that is, he (Ferron) started at the point E, and ran due north one mile and set the corner Z.” Not only is there evidence to show that the two corners, Z and A, disagree with the calls in the notes, but also that A or E is wrong. E was supposed to be placed by Dickert on the township line, just where it was found by both Ferron and Pancake; but, taking A as the controlling point, and going one and one-half miles east of A, the east boundary line of section 12 would be 171 feet in another township.

All the monuments except A, X, and Z are obliterated. Tbe ultimate fact sought to be established at the trial was, where had Dickert placed the mouuments, all' of which are •obliterated, marking the boundary between the quarter-sections in dispute? It is conceded, and it is the law, that wherever he placed them, that became the actual boundary line, no matter whether it was accurate or not. But the majority court, in effect, have held that the finding of the lost monuments marking such boundary is to be determined by starting at the pont A, where Dickert' started, and, by following the course and distance of his field notes, the lost monuments should be established at whatever place these notes lead. In other words, the majority court, in effect, have declared not only that the field notes of the original survey are competent evidence to establish lost monuments, which I concede, hut that they are conclusive evidence thereon, which I do not. concede, but with which-I disagree. There is no case cited holding that the field notes of the original survey are conclusive evidence to éstablish lost monuments. .What courts have said is, wherever the comers were placed by the original government survey, that must govern as the boundary line, no matter whether accurate or not, and cannot be altered or controlled by subsequent surveys. When, however, the corners become lost or the monuments obliterated, the cases are quite harmonious that:

“It is for the jury to ascertain and settle at what precise point the disputed or lost corner was placed, and the disputed line marked, hy the government surveyor in his original survey. And to enable the jury to perform that duty intelligently, any evidence, whether parol or written, may he submitted to them, which has -any natural and reasonable tendency to show where that comer was placed or that line marked in the original survey. Recourse may be had' to the unobliterated marks and corners of that survey, to the field notes and plat, and to subsequent surveys made under their guidance. Such subsequent surveys cannot alter or control that survey, for, so far as it can be traced or proved, it must govern. But still they may aid the jury in ascertaining the original position of the lost comer. With their aid the jury may be enabled to ascertain with reasonable certainty where the lost corner was located in the original survey. Without their aid the jury may not be able to ascertain that location. Their weight or influence as evidence must be determined by the jury. The mere fact that the party relying on them has not proved that they correspond in all respects with the original government survey does not authorize the court to instruct the jury to disregard them entirely in seeking the location of the lost corner or line. The party cannot in any case prove such correspondent without proving every part of that survey. In many cases1 he cannot prove a lost comer, or any other lost part of the survey, without the aid of such subsequent surveys. 'And in all such cases a rule which requires, as a condition for obtaining any influence for them, that the party relying on them should prove their correspondence in all respects with the original survey, would amount to a denial of the right to prove the location of a lost comer or other lost part of the original survey. There is no such rule. The jury ought to consider such subsequent surveys in connection with the other evidence in the cause, and if, after doing so, they believe that the original location of the lost corner was at a particular point, designated with reasonable certainty by the evidence, such belief ought not to be disregarded in making up their verdict.” (Billingsley v. Bates, 30 Ala. 376, 68 Am. Dec. 126.)

When the cases cited by the majority court are read, the above is all that is maintained by them. The error of the majority court in holding that the only and conclusive procedure to establish lost comers is to retrace the lines of the original survey is fully pointed out and answered by the following cases: Moreland v. Page, 2 Iowa 139 (vol. 2, Cole’s Ed.); McClintock v. Rogers, 11 Ill. 279; Martz v. Williams, 67 Ill. 306; Miller v. Topeka Land Co. (Kan.), 24 Pac. 420. Tbe rule of law as recognized by these cases, as well as by the cases cited by the majority court, is to the effect that, where corners become lost or monuments obliterated, boundaries may be proved not only by field notes, but hy surveys, records, and certificates, maps and plats, testimony of witnesses, and other evidence admissible to establish the controverted fact, not for the purpose of altering or •correcting the original survey as made, but for the purpose •of determining where, as a -matter of fact, the monuments were originally placed by the original government survey; and the determination of this fact is one for the jury, under proper instructions from the court. (5 Cyc., 956-972.)

Here there was evidence to show that point Z was established one mile due north from the point E, as established hy Dickert — the so-called original survey. Monument E is now gone. The question is, where was it originally placed by Dickert, The majority court say the only and conclusive way to determine such fact is to start' at the point A, where Dickert started, and run east one and one-half miles. But inasmuch as Z was run one mile, due north from E, as established by Dickert, why is it not evidence proving where E ■originally was by running one mile due south from Z, which still stands, and is a witness as to where E was ? And starting from the point Z, or starting from the point E, the rock quarry in dispute would be in the quarter section owned by respondent. And according to the surveys made by Fer-ron, Pancake, and Anderson, and evidence of other witnesses, the lost monuments, as established by the original survey, would have been found, at such place as to give the rock quarry to the respondent. It may be that this evidence was not so convincing and was not of so great a weight as was the evidence retracing the field notes of the original survey. But as the authorities say, this was mere matter of weight for .the jury. Suppose it had been shown by oral testimony from persons who saw placed the original monuments (now obliterated), or who saw them thereafter in place, and were able to identify tbe exact place; could it be said that such evidence cannot be considered to determine where the monuments were originally placed, but that it must give way to wherever the field notes of the original survey by course and distance would place the monuments ? Here it is not claimed or pretended that the surveys and the evidence of respondent’s witnesses was not competent evidence tending to prove where the lost monuments were originally placed. And if it was competent evidence, and tended to prove, as it did, that the rock quarry was in the quarter-section of respondent, on what principle of law shall it now be declared that the trial court should have wholly disregarded such evidence, and directed a verdict for appellant? The only answer to it is that the field notes of the original survey are conclusive, and that the lost monuments should have been established by starting at point A, where Dickert started, and following to whatever point or points the notes, in their course and distance, lead, and that all other evidence of a different nature proving lost monuments and establishing boundary is incompetent.

I am, however, of the opinion that the court erred in refusing to give appellant’s request No. 4, which is as follows: “You are instructed that if you find from the evidence that the original corners of section 12, as made by the surveyor, Mr. Dickert, have been torn down or destroyed, or cannot now be found, then it is your duty to ascertain from the evidence, as nearly.as possible, where the said original lines and corners were that are in dispute, and it makes no difference whether or not said original lines and corners are exactly where they should have -been if the survey had been perfectly made.” The following charge, which the court gave, was not the substance of said request: “You are instructed that the true corners and boundary lines of townships, sections, and subdivisions of sections are where the government surveyors in fact established them on the ground. Evidence of surveys made by various civil engineers has been introduced in this case. Such evidence was admitted for the purpose of assisting you in determining the true location of the boundary line in dispute, and it is your duty to determine from, all the evidence where the line between the northeast quarter of the southeast quarter and the northwest quarter of the southeast quarter of section 12 is located upon the ground according to the government survey, and in which of said forty-acre tracts the stone quarry in controversy is located.” The evidence shows that there was several government surveys made by several different government surveyors at different times. The instruction states that “the true comers and boundary lines,” eta, “are where the government surveyors in fact established them on the ground.” At the time of and by the original survey, or at some subsequent time, and by another survey ? The phrases “government surveyors” and “according to the government survey” are not sufficiently specific in this- regard. By this charge the attention of the jury was not sufficiently directed to the fact, as was done by the request, that the lines and comers, as originally made and placed, must control, whether accurate or not.