88 Iowa 126 | Iowa | 1893
Lead Opinion
The first exception taken to the proceeding by the defendant was an exception to a reply to the exceptions to the report filed by the defendant. This reply was filed at the close of the introduction of the defendant’s evidence in chief. The reply was to the effect that the
The ground of the objection to this reply, and. to the evidence introduced to sustain its averments, is that it introduced a new element in the case, and that no such issue was involved in the proceeding, and that the only purpose of this proceeding is to ascertain where the original government lines and corners were located. In other words, it is claimed that where, in a proceeding like this, it' appears from the evidence that the original government corners and lines have been legally changed by adverse possession, or by the acts and acquiescence of adjoining owners, the court must limit its inquiry to the proper location of the government lines and corners. It is apparent that such an inquiry would determine no right. The special proceedings would be a mere farce. It would be the finding of a fact which would in no manner determine the rights of the parties. It was no error to permit the reply to the exceptions to be filed. Indeed, no reply was necessary. The defendant requested the court to hear testimony and fix the true line. It was a request, not to hear a moot case, which would determine no right, but to take evidence, and determine the rights of the parties; and it was competent for the court to make a finding independent of that made by the commissioner, and especially is this so where the evidence is received at the request of the parties, as was done in this case.
2. -: -: record on appeal. “The evidence seems to me to show that the corner as established by Mr. George C. Van Allen, as county surveyor, in 1864, is the original corner described in the field notes of the United States government survey. But it is also shown, particularly by the additional evidence offered on the second hearing, that the adjoining proprietors, including Mr. Tschantz, acquiesced in the subsequent survey which was made by Mr. Mann when he was county surveyor, and that they bought and sold, and set their fences and other improvements, on the lines of that survey. To permit any of them to insist upon the Van Allen survey now seems to my mind contrary to the intention of the statute as interpreted by the supreme court in Davis v. Curtis, 68 Iowa, 66.”
A motion was filed in this court to strike the decision or opinion from the abstract. The motion will be overruled. It is always desirable upon an examination of an appeal that this court should be advised of the reasoning upon which the trial court proceeded in determining a ease.
The judgment and order of the district court are AEEIKMED.
Dissenting Opinion
(dissenting). — I can not concur in the conclusion that questions of title by adverse possession or occupancy may be tried in this proceeding. It seems to me that the necessity for, and the language and purpose of, chapter 8, Acts of the Fifteenth General Assembly, under which this proceeding is had, forbids such a conclusion. I am clearly of the opinion that the sole purpose of that chapter is the permanent establishment of corners and boundaries to lands, and .not the settlement of titles based upon any other facts. The provisions of law for settling titles based upon adverse possession or occupancy were ample. Such titles are not necessarily dependent upon, but often independent of, the true corners and boundaries, and rest upon questions of facts which it is the peculiar province of juries to determine. If we recall how the mythical John Doe and Richard Roe used to figure in the search for lost corners and boundaries, we will see something of the necessity of such a law as I maintain said chapter to be.
The basis of all surveys of lands in this state is the government survey. The lapse of time and improvement of the country has and will continue to obscure and destroy the monuments that mark these and later legal surveys. The preservation of these corners and boundaries is a matter of great importance, yet without
I would hesitate to dissent from the conclusion of the majority upon my own reasoning, but I am confirmed in my conclusion by former decisions of this court. In Gates v. Brooks, 59 Iowa, 510, the dispute
The learned judge of the district court seems to have rested his conclusion upon Davis v. Curtis, 68 Iowa, 66, and counsel for the appellee strongly urge that case as supporting the conclusion. There certainly are -e'xpressions found in that opinion that seem' to support the conclusion of the lower court, but a careful -examination of the case, in the light of the questions presented and of the statute, leads me to a different view. The dispute there, as here, was the true location of the lost section corner. In 1886 County Surveyor Blakeslee had relocated that corner as claimed by the defendants and adjoining proprietors, and the public had recognized it for many years, and improved by roads, fences, buildings, etc. Two reports were made, the majority fixing the corner as claimed by plaintiffs, the minority as established by Blakeslee, which was 'as claimed by' defendants. The lower court approved the majority report, and this court reversed, saying:- “Our conclusion is that the court should have held that the Blakeslee corner was the true one.” The Blakeslee survey, and the long recognition of it, warranted the conclusion that it marked the true corner. The evidence of occupancy and recognition was not considered for any other purpose than to relocate the lost corner. . It was claimed that, if defendants had “open, adverse possession under color of .title or claim of right, they can hold the land without regard to the location of the corner.” The court says: “Such a construction of the statute under which this proceeding
Doolittle v. Bailey, 85 Iowa 398, was a proceeding to establish a lost section corner. Defendants pleaded acquiescence in the point claimed by them and the statute of limitations. The commissioner recommended the point claimed by plaintiffs. The court rejected the report, and established the corner as claimed by the defendants. The questions considered were whether there had been acquiescence for over ten years, the statute of limitations, and whether the court.
In Davis v. Curtis, 68 Iowa, 66, as in this case, the lower court fixed a point other than that established by the government survey as the corner, and the case was reversed, and the corner re-established where it was found to have been established by the original survey. It is said that to limit the inquiry to the proper location of the government lines and corners would determine no right, and that the special proceeding would be a mere farce. I do not so view it. The proceeding may be had as to any lost, destroyed, or disputed corner and boundary, whether established by government or other legal survey. It often is a .matter of importance to adjoining owners to know where the true corners and boundaries of their lands are, as their rights depend upon them. Neither may claim anything by adverse