Wisconsin Realty Co. v. Lull, 177 Wis. 53

Wisconsin Realty Co. v. Lull

177 Wis. 53 | Wis. | 1922

Eschweiler, J.

This sketch helps to illustrate the situation :

*59Defendants’ assertion of title to the 173 acres found to lie between the meandered lines in the field-notes and reproduced in the plat of 1856, and the river as actually existing, is based upon the language in the warranty deed to it in 1905 by the then owner of the property, the Land Company, and reading as follows:

“Lot 1 in section 21, being all the land in said section north of the Flambeau river and containing 65.48 acres more or less according to the United States government survey.”

Upon this language and the covenant of warranty in said deed defendants assert that all the land in section 21 which is lying north of the Flambeau river as it actually exists is theirs, and that neither the Land Company nor any subsequent grantee from it can be heard tO' assert to the contrary. Defendants further claim that, if such conveyance should not be held to so give them title to all of such tract, they at least take title to the entire northeast quarter.

The first of these positions so taken is based upon the general and well recognized rule that the courses and distances of meander lines in the government survey, subsequently incorporated in the plat made from, such field-notes, are not controlling as to the boundaries of land conveyed with express reference to a body of water or other natural boundary along which such meander lines are run. That the meander lines are construed to be primarily for the purpose of measuring the quantity of land for which the United States government is to receive the purchase price, rather than as exact surface limitations, and that therefore such meander lines yield to the specified actual natural lines of boundary. Brown v. Dunn, 135 Wis. 374, 377, 115 N. W. 1097. To such conceded general rule no further authorities need be cited. Except and unless the situation presents one or more of the recognized exceptions to such general rule, defendants’ present contention must be upheld.

But by a well established exception to this general rule, *60however, the defendants are prevented from now asserting title to any land south or west of- the two quarter-lines surrounding this quarter-section. The meander lines of the field-notes and the plat on the south and west of the tract of land described as lot 1 on the plat and in the conveyance to the defendants serve at least as a starting point from which a person claiming under such deed may ordinarily proceed to search for the designated natural monuments as boundary lines. When in such search, however, starting from such meander lines, he reaches the nearest govern-mental subdivision line, there he is bound to stop though such natural boundary is not yet reached.

Owing to the position of the meander lines of the river as indicated on the plat with reference to the center of this particular northeast quarter, this presently considered exception to the general rule requires that the governmental subdivision lines should in their turn control over the right of the claimant to move on beyond the meander line to the natural boundaries. That is to say, the right he may exercise to proceed beyond the meander line must now yield to the superior weight and dignity to be given to the governmental subdivision lines beyond which the government plat or meandered lines did not carry the natural boundary. This, therefore, would in any event halt the defendants at the two quarter-lines. This exception is well established, as the following list of the many authorities that might be cited demonstrates: Underwood v. Smith, 109 Wis. 334, 341, 85 N. W. 384; Mendota Club v. Anderson, 101 Wis. 479, 490, 78 N. W. 185; Lally v. Rossman, 82 Wis. 147, 149, 51 N. W. 1132; Martin v. Carlin, 19 Wis. 454, 456; 9 Corp. Jur. 191.

On the important question still -remaining, as to whether the defendants, under their conveyance, can claim beyond that which was designated, described, and limited on the government plat as lot 1, or at least beyond and up to the two quarter-lines, we are satisfied that the trial court was *61correct in limiting, as he did, the effect of this conveyance to what was so platted as lot 1 of substantially 65.48 acres, and that the meander lines as given in the field-notes and in the plat limit the lines of the actual grant on the south and west.

All the general rules as to the greater or lesser degree of weight and control .to be given to one form of description as to the property conveyed as compared with another are after all but helps to be used in determining the essential purpose of the construction of such an instrument, namely, to discover what was the real intent of the parties, because as to this form of contract as well as all others it is not for the courts to make a new or different contract than that which the parties themselves intended to make, but merely to ascertain, under general and recognized rules of construction, what the contract really is. 4 Ruling Case Law, 106; 9 Corp. Jur. 152. None of these general rules of construction, therefore, are absolute and invariably controlling. It is the real intention of the parties, to be gathered from the entire writing, and, when necessary, by resort to the circumstances surrounding the transaction, that must ultimately control. Security L. & E. Co. v. Burns, 193 U. S. 167, 179, 24 Sup. Ct. 425 (affirming 87 Minn. 97, 91 N. W. 304); Hall v. Eaton, 139 Mass. 217, 221, 29 N. E. 660; 4 Ruling Case Law, 106; 9 Corp. Jur. 152, 174.

A construction of the entire conveyance satisfies us that the meander lines as designated on the plat and in the original field-notes must be held to be the actual boundary of the land conveyed, for the following reasons:

The conveyance contains an express reference to this particular governmental survey;

It contains an express reference to a particular lot platted and represented on such survey;

It contains a specific designation as to the acreage contained.

The difference between the designated acreage in the con*62veyance of 65.48 acres claimed, and the 160 acres claimed if the boundary should be limited by the two quarter-lines, or the 173 acres if to the actual river, is in either event so grossly excessive as to indicate, in connection with the purchase price, that neither of the larger quantities could have been within the intention of the parties.

Express reference to the United States government survey makes the plat as recorded in pursuance to the field-notes, if not a substantial part of the deed, at least an appropriate source of reference in so ascertaining the real intention. Whitney v. Detroit L. Co. 78 Wis. 240, 247, 47 N. W. 425; Ainsa v. U. S. 161 U. S. 208, 229, 16 Sup. Ct. 544; 4 Ruling Case Law, 117, 119. While such plat does indicate the existence of a river where the meander lines were apparently run, yet neithér the assertion of the apparent existence of the river as being there by such lines nor the granting of a patent in accordance therewith does more than, prima facie at least, imply the existence of such body of water, and does not confer, of itself, any riparian rights. Producers Oil Co. v. Hanzen, 238 U. S. 325, 339, 35 Sup. Ct. 755. As was there held, if the facts and circumstances- surrounding the transaction disclose an intention to limit the grant to actual traverse lines, such, rather than the actual natural monuments, will control.

The reference to specific acreage may be, and generally is, required to yield to- the result of actual measurement according to plainly defined lines or natural monuments, but nevertheless the question of quantity may be proper for consideration and in some instances have a controlling weight. As was said in Chapman & Dewey L. Co. v. St. Francis L. Dist. 232 U. S. 186, 197, 34 Sup. Ct. 297, a specification of 13,815 acres is hardly consistent with the claimed purpose that by such conveyance there was intended to be conveyed 22,000 acres. See, also, 4 Ruling Case Law, 109.

The case of McEvoy v. Loyd, 31 Wis. 142, relied upon by defendants, in nowise affects this rule. It was there *63held that a reference to a particular government survey in the conveyance would not be limited by the specified acreage, but would carry with it any actual surplus. The situation in that case was expressly stated to be the common one often presented of such governmental subdivisions exceeding or falling short of the requisite number of acres. Page 145. No such situation, of course, is here presented, and the general language in that case cannot control here.

Again, in connection with the designated quantity of 65.48 acres is used the term “more or less.” Such term covers an excess or deficit that is within a reasonable limit, the risk as to which is to be assumed by the respective parties. It does not cover a situation where it is evident there is a gross mistake. Frey v. Etzel, 160 Wis. 311, 314, 151 N. W. 807.

Finally, the discrepancy is so gross between the quantity specified and that claimed by defendants as to clearly indicate the existence of a mistake in the reference to the actual river as a boundary, and therefore warrants the conclusion that the meander lines on the plat, referred to in the deed by its express recognition of the survey, are controlling as to the boundary. Lee Wilson & Co. v. U. S. 245 U. S. 24, 29, 38 Sup. Ct. 21; Security L. & E. Co. v. Burns, 193 U. S. 167, 182, 24 Sup. Ct. 425; Barnhart v. Ehrhart, 33 Oreg. 274, 54 Pac. 195; Barringer v. Davis, 141 Iowa, 419, 428, 120 N. W. 65; 4 Ruling Case Law, 98.

This disposition of the case makes it unnecessary to consider the other questions discussed in the briefs.

By the Court. — Judgment affirmed.