8 S.D. 479 | S.D. | 1896
Lead Opinion
This action was brought to enjoin defendants from opening and maintaining a section-line highway through plaintiff’s land, and to recover damages resulting from an attempt to do so. The line between sections 25 and 26, Split Bock township, Minnehaha county, is the one in dispute. The highway along what was claimed to be this section line had been worked and traveled for a number of years, when, in April, 1893, the township employed the county surveyor to survey its lines and erect landmarks, under'Chap. 35, Laws 1890. In making such survey the county surveyor located the line about 18 rods west of the traveled highway, where it passes plaintiff’s premises, and, as he contends, that many rods west of where it was originally located by the government surveyors. An attempt by the township officers to open and work a road along the line as located by the new survey gave rise to this action. It was tried by the court, resulting in a judgment for plaintiff, from which, and an order denying a motion for a new trial, defendants appealed.
Defendants contend. that the survey made by the county surveyor was the corporate act of the township, and is binding upon all land owners until set aside in a direct proceeding brought against the township in its corporate name; that it cannot be questioned collaterally. We are unable to view Chap. 35, Laws 1890, in any such light. The act itself makes the survey only presumptively correct. Prior to its passage the same presumption prevailed in favor of surveys made in the manner prescribed by the statute. The only substantial effect — apparently, the only purpose — of the act was to authorize civil townships to furnish profitable employment to county surveyors at the expense of the townships. So far as this cape ip popcepped,
It is claimed that defendants were performing their duty as public officers, and can neither be restrained, nor required to respond in damages. If the findings of the court are sustained by the- evidence, they were not performing any official duty. It was their duty to maintain and work a highway along the section line as established by the original survey — not on a line 18 rods west thereof, and through the land of plaintiff. When they left the section line, they left the highway, and whatever they did beyond the limits of the highway was without authority and unlawful.
It is alleged and admitted that defendants Benedict, Lee and Munson are township supervisors; that defendant White is road overseer; and that each acted in an official capacity. It is contended that they and their successors in office cannot be enjoined, because the title of the action fails to show that they are sued in an official capacity. This is but a defect in form, which involves no substantial right, and, in any view, cannot be regarded as reversible error. Defendants, having exceeded their authority as township officers, might be treated as trespassers and enjoined as individuals. The decree is effectual to prevent them from acting in any capacity, and it is immaterial to them what effect it may hereafter have upon the corporation or others not parties to this action. The facts, as found by the court, clearly authorized the issuance of an injunction. 2 High Inj. § 702, and cases cited.
Defendants make the point that they were entitled to a trial by jury, Upon the issues made by the complaint and answer,
The trial court found that the line run by the county surveyor between sections 25 and 26 does not correspond with the line of the United States survey, and the landmarks erected by the county surveyor were not set upon the corresponding section corners and quarter section corners established by the United States survey between said sections, but said new line and landmarks are located about 18 rods west of said United States survey, and upon plaintiff’s said premises. It is claimed that this finding is not sustained by the evidence, and numerous errors are assigned relative to the introduction and rejection of evidence. A large number of witnesses were examined on behalf of both parties, among whom were some of the first settlers in the township. As is usual in this class of cases, the evidence is conflicting. It would serve no useful purpose to attempt a statement of it in this opinion. After a careful examination of the entire record, we have reached the conclusion that, upon the competent evidence before it, the court was justified in finding as it did in respect to the true location of the line in dispute. This court will not reverse the findings of a trial court unless there is a clear preponderance of the evidence against its decision. Randall v. Burk Tp., 4 S. D. 337, 57 N. W. 4. .
Dissenting Opinion
(dissenting). I am; unable to concur in the majority opinion of this court, and I shall only attempt a very brief statement of my reasons for dissenting.
I concede, that leaving out of view the official survey made by the county surveyor, and the government official field notes, there is no such preponderance in the evidence as to where the original mounds were placed as to authorize this court to reverse the judgment of the court below. But, in my judgment, the evidence as to the old mounds was so conflicting that the court should have decided the case in favor of the defendants, upon the official survey made by the county surveyor, which was shown to correspond with the original government field notes. It seems to me that the court below, and the majority opinion of this court, give too little effect to the official survey. Of what practical use are the government field notes, unless a controversy like the one before us can be settled^by surveys made corresponding with them? The county official survey seems to have been made under the provisions of Chap. 35,
The rule that fixed monuments will govern and control courses and distances is based upon the theory that such monu
Mr. Pomeroy, in his work on Equity Jurisprudence, says: “The presumption, of course, arises, that the instrument is what it purports on its face to be — an absolute conveyance- of the land. To overcome this presumption, and to establish its character as a mortgage, the cases all agree that the evidence must be clear, unequivocal, and convincing, for otherwise the natural presumption will prevail.” 3 Pom. Eq. Jur. § 1196. See, also, cases cited. The same rule applies to cases for the reformation of contracts, or other instruments in writing. The presumption arising, that such contracts contain the real agreement of the parties, is so strong that it can only be overcome by the same clear, unequivocal, and convincing evidence as is required to show that an absolute deed is a mortgage. 2 Pom. Eq. Jur. § 859. These cases are referred to only to show that there are a class of cases where rights are given, but yet they must be established by more than a mere preponderance of the evidence. When it is sought to establish a section line, therefore, which does not correspond with the government field notes, or the official survey of the county surveyor, and which, in effect, contradicts a public record and an official survey, certainly something more should be required than a mere preponderance of the evidence. Evidence as
The defendants justified their entrance upon the land in controversy under and by virtue of the official survey of the county surveyor; which, as we have seen, is declared to be presumptively correct. To permit the parties to overcome this presumption by a mere preponderance — conceding there was such a preponderance — of conflicting oral evidence of the existence of earth mounds, claimed to have been placed upon an entirely different line from that shown by the field notes of the government surveyor, but which no witness testifies were so placed by such surveyor, seems to me to be calculated to render very uncertain the boundaries to government land, and holds out to parties too great inducements to swerve from the truth, in their recollection of these old monuments. It may be observed that, in the cases before us, many of the witnesses as to the line claimed. by the plaintiffs, if the same can be maintained, secure from 10 to 40 acres of land each, in addition to the land patented to them by the government, while the number of acres of their neighbors are correspondingly that much less than the patent calls for. While undisputed and well-established government mounds, placed by the government surveyor, should be respected, doubtful and uncertain evidence of the existence of such mounds, many years ago, along lines ,that do not correspond with the government field notes, and which, in effect, impute to the government surveyor great negligence, want of integrity, or ignorance, should be given but little weight, as against the official field notes and survey. The line contended for by the plaintiffs in the cases before us is similar to the one contended for in Hanson v. Red Rock Tp., 4 S. D. 358, 57 N. W. 11, and my views upon the subjectof these earth mounds as monuments are so fully stated in the opinion in that case that a repetition of them here is unnecessary. My conclusion