26 S.D. 89 | S.D. | 1910
This action was brought to determine the title to, and recover damages for withholding possession of, a certain strip of land comprising some 20 acres which the plaintiffs claim was a part of the S'. % of section 7 in a certain township, and which defendants claim was a part of the N. % of section 18 in said township. It was the claim of the plaintiffs that the original government section and -quarter corners, except on township lines, -had all become “lost” in this township, and that upon a resurvey being made to establish such “lost” corners, which resurvey it is claimed and may be conceded was made as required in case of lost corners, the corners were so- located as to show them entitled to the relief asked for. It is the claim of defendants that many of the original government section and quarter corners were still at time of trial of action clearly visible, and that, while some of the corners had become “obliterated,” there were none -that had become “lost.” The cause was tried to a court and jury. The jury reported findings to the effect that the corners, not on township lines, had become “lost.” The court adopted these findings and entered conclusions and judgment in favor of plaintiffs. A new trial having been denied, defendants have appealed to this court from such judgment and order denying a new trial.
The resurvey of this township was -the work of one Van Antwerp, who had been employed by the authorities of said township to locate the section and quarter corners therein. At that time this township -had been settled some 25 years, and roads had been established, supposedly on the section lines, fences built- to agree with such highways, in some places the roads -had been worked, and also groves had been set out along such roads. According to the -testimony of Van Antwerp, he was unable to find any mounds inside of the township lines that he considered government mounds. He inquired of the settlers to try and ascertain
Upon this exhibit the unbroken lines show lines of resurvey, the broken lines the corners recognized by roads, fences, trees, etc.’ While only one line each way across the township is shown, it is readily seen that the final judgment in this case affects the owners of every government division of the township.
Conceding that the resurvey was made correctly, providing a resurvey was permissible, the sole question before us is whether, under the evidence, it appears that the government corners were “lost.” Unless -such corners were “lost,” there could rightfully be no resurvey, and, if only part were lost, the resurvey could only be had
The plain-tiffs called one Manback ais a witness, and, without his testimony, there would in our opinion be no proof that the original corners were “lost.” He claimed that in the year 1880 he was engaged in locating settlers in this township, which township was at that time wholly unsettled, that he was unable to find
To our minds the evidence was overwhelming to prove that many of the original government mounds and pits located within the township lines were still visible; that though the others had become obliterated, yet, in view of the proof of their former location as shown by “calls,” fences, highways, groves, etc.', few, if any, of such mounds had been “lost”; that, if any had become “lost,” they could have readilly been located at their true location by measuring from the visible mound or from restored “obliterated” mounds. Certainly where people for 20 or more years have recognized lines as the true boundaries throughout a whole township, there must be most satisfactory proof that the government corners have become absolutely “lost,” as distinguished from “obliterated,” before it will be allowed the -township authorities or private parties to institute a new survey and locate corners throughout a township at points clearly not where the -original corners were located.
The judgment of the trial court and order denying a new trial are reversed.