*1 v. KEIL THOMSEN No. 2613 226 Pac. 309. 1924. June Regarded 1. Boundaries —When as “Lost Corner Corner..” regarded A corner should not be lost until all means of fixing original exhausted; its location have “lost corner” being survey position of a of which cannot be beyond determined reasonable either1from traces relating or from other to reliable evidence original monument, and the which restoration of on the earth’s only by accomplished can be means of a suitable surface interdependent with to existent reference corners. Accessory, 2. I-Ield erom Boundaries —Road Ravine an Call Original Quarter Location oe Be Corner Could Established. ravine, it was In a Where road called for field notes accessory, was to as an or call from which he considered established, of could location be especially found at which a marked stoue where designated in the location of the the field notes as road, and in view about 70 feet from clear corner was thereof. Party to Harked Held of Conceal Stone 3. Evidence —Effort Against Him. Circumstance . found near conceal a marked stone effort a circumstance corner held location of the claimed justifying suspicion upon looking his case. the court Generally — Yield Distance 4. Boundaries Course Objects. and Ascertained Natural yield Generally and ascer- to natural and distance course wanting, they course objects, and the are where tained required to reconciled, not one cannot and distance be preferred the other. Unjustified Constituting Appeal of Brief and Error —Portion Adversary’s Witness Stricken. Attack unjustifiable, portion appellant’s an brief was Where witnesses, adversary’s a motion one attack inexcusable duly grounds portion on such the brief made to strike granted. will he p. S3; 1(5, n. 15, p. 1G2, 4) sec. (1, 2, n. 9 C. J. sec. See 55; (5) p. n. 33; (3) p. 213, J. sec. n. O. sec. C. ,T. 1595, p. n. 23. sec.

Appeal Court, Humboldt Sixth Judicial District from Judge. Callahan, County; A. James Keil, who Thomsen C. F. T. A.

Action cross-complaint. judgment From a interposed Vol. 48 —1 48 Nev. denying a motion for order

defendant, and from an J., (Sanders, appeals. Affirmed. trial, plaintiff new dissenting.) Dignan, Appellant: *2 for &

Warren object Every random for natural line call survey admittedly incorrect, yet defendant is support judgment on obliterated road whose seeks to surveyor His refused to position is nowhere disclosed. Department governed by of Interior and rules of be single proportionate attempted fix true corner regulations require meas- measurement, though double nothing. survey 1919 anchored to is His urements. Surveying, 343, 365, 370; secs. 379. Manual, Clark’s secs. and objects marked lines corners for natural Calls If there is mistake prevail courses and distances. over distances, is reverse. rule in and in and not courses calls Golinsky, 805; Simmons, Pac. Goss v. 82 Christenson v. 604. 106 Pac. call, ignored apparent mistake

Defendant clearly Judgment finding upon it.' make refused to must be reestablished Lost corner evidence. Carmichael, 1120. King 87 Pac. according v. to rules. Poivell, Respondent: Thos. E. canyon and above below

Road still exists could canyon steep in bottom of where line crossed it. Cuehlo, not hold Miller v. 90 Cal. does that road evidence, merely legal it is not is not but con- surveyor attempted, Plaintiff’s not to reestab- clusive. investigate lish N.W. or N.E. corner of section but to or monuments in field notes. as to corners obliterated, Ni/j, of section 33 was found to be unnecessary not lost. Its relocation Original have relocated it. never claimed to surveyor’s presumed corners United States correct. wrong, conclusive, right as to lines. are 389, 395; 13, 385, 388, Surveying, Clark’s sections and dis- Boeker, 92 W. 227. Courses Fredertzie v. S. Doherty, yield v. fixed Blake tances monuments. Clark, 109; Higuera 5 L. Ed. L. v. U. S. 18 Ed. sec. 415. Obliterated corner be established Clark, 398, 401, witness who saw it. secs.

OPINION

By Court, J.: Coleman, This suit is in the nature of an quiet action to title. reality is in an action to boundary. establish a sought Plaintiff to have quieted his title to the north- quarter west the northeast of section township north, range east, Mount Diablo base meridian, County, Humboldt Nevada. The defend- ant filed an disclaiming any answer title or interest property, said cross-complaint sought to have quieted his title to the east half of the northwest township north, range east, Mount meridian, Diablo base and County, Humboldt Nevada. judgment From a defendant, favor of the and an *3 denying order trial, motion plaintiff new appealed. has

A determination parties of the issues between the depends entirely upon the correct location of the north quarter-section 33, plaintiff corner of section since the is admitted to be the owner land of the to the east of the true parties, line between the tracts claimed and the defendant of the tract to the west of this line. township

The in which the mentioned surveyed many years ago by located was the United States In an Government. effort to sustain his con- position quarter tention as to the correct of the corner mentioned, respective parties employed surveyor doing they to locate the same. In undertook so locate north line of section 33. While both found original monument of the southwest corner of the section, they disagreed original as to the location of the northwest and the corners northeast thereof.

Beginning section, the northwest corner of the original notes, material, field far as so read: “East, and 33 random line between sections 28 48 NEV. ground. mountainous Over 17° 45 east.

variation ravine course S. S. 21.00 cross course 11.00 cross ravine temporary set S. E. 40.00 road course 39.00 cross sect N. sec. cor. & S. line 55.00 cross 15 Iks. N. of ravine course S. the cor. to E. secs. 80.33 inter- true 54' on a line bet. I N. 89° W. run 33 & thence Deposit marked 40.16 var. secs. 28 & 33 same dig pits ground sec. cor. in the stone ins. 1/4 raise ft. dist. and & of cor. ins. E. W. 18x18x12 51/2 In high, it. ft. base over ft. mound of earth 3% 1% long square, 12 ins. 2 ins. ft. pit a stake E. drove the cor. to N. -face. 80.33 ground marked onS. 1/4 rate, mountainous, 3rd soil land 32 & secs. sagebrush.” contending north

The his “lost” corner is a section 33 corner of correct, which, would neces- point if it at a established surveyor of judgment. a reversal sitate the north view that took the defendant it at the corner, and established not a “lost” corner is adopted as trial court quarter corner. north defined follows:

1. A corner is “lost” position whose “A is a of a lost beyond determined, reasonable either cannot evidence from other reliable traces or from original monument, relating surface can be accom- on the earth’s whose restoration surveying process only by plished of a means suitable interdependent corners.” existent with reference Boundaries, 376, quoting Surveying sec. Clark on Department of Interior. from rules of the author In the same section *4 regarded all as lost until “A should not be corner fixing original have been exhausted. location its means of satisfactory the corner to so locate more much by proportionate locate regard it as “lost” and than measurement.”

At section 329 the author surveyor not treat corner lost until “The should as fixing all he exhausted means of its location aside has thereof, by from the determination measurement thereof to other corners.” says appellant the rules of the

Counsel for Department of relative to the establishment Interior originally pursuant the as established of corners certainly government survey must This would control. upon question were be true if the but, upon surveyed public domain; since it land issued, patent privately owned, has been and for which but, contention, since prepared we are not admit the theory tried to have been the case seems guided rule disposing urged, of it be^ we will in invoked. kept trial court no doubt in mind the admonitions quoted considering

above a corner as lost. Indeed, we think it would have violated the rule by appellant invoked had it concluded that the corner light question quoted is “lost.” In the rule could, beyond we must if trial determine reasonable either from traces or from relating original position other reliable evidence to the corner, position. of the determine its part The evidence on plaintiff of the is to the effect that he measured the points distance between the represent which he contends the northwest and the northeast corners of the section and established the north corner at a equidistant between pointed out, surveyor two. As we have of the disagreed defendant as to the correct location of these as plaintiff. corners maintained of the accepted Which appear. view the trial court does not material, rejected Nor indeed is it since it in toto the theory being as its a lost corner. Since, said, as we have of the north boundary seriously disputed, line of the is not we need not consider in detail evidence of the sur- veyor defendant. It will be observed that field notes of the of this north quoted, line of section calls “road course *5 48 NEV. point E.” at 89 chains distant from the S. a northwest section, temporary corner of the at 40 chains “set undisputed testimony 1,4 sec. cor.” The that shows crossing was a there road this section the direction notes; mentioned in the field that this road is in a deep point at ravine the where the ravine crosses the question; a not north section line in that road could west that have been constructed the side of ravine on country, topography the and there because of the of that there never was road on the east evidence along it, not built side of and that one could have been except great cost; at that the bottom of its east side roadbed; in' the road the ravine was a natural many years; few this ravine had been used for large years ago washed there was cloudburst gravel the road at the quantities into of rock mentioned, point point at which the road passed up covered over was ravine where thus Witnesses also testified oral evidence. located road, on the side feet east of this about 70 road, a rock about hill, and in clear view of figure “4” long cut inches was discovered n figure. The defendant over the it with line this over rock at he had seen this testified that years. coincidence A remarkable period of several surveying crew fact that is the in this connection place it had from plaintiff took this rock town, strenu- years, it carried for several part the defendant ously all efforts on resisted produced in court. it to have Boundaries, at section Surveying and Clark obliterated, a monument the accessories “Where highest evidence of the location of furnish monument, are and therefore such accessories relocating prime importance in such obliterated all witness term accessories includes monument. The water, mounds, pits, streams, trees, trees, bodies of line ledges, rocks, features to which the or other natural known. monument are from the corner or distance Thomsen evidence furnish unmistakable natural features

These monument, the nearer the location of stronger point, the evidence.” required in the field road called for case the In the instant according place, in a ravine —the *6 place it is where evidence, the it be—and the could certainly must be considered This to have been. shown point the accessory the of which call from as an —a be estab quarter corner could the of location it is remembered Particularly when this true is lished. found was marked stone the which that the the location notes as designated in the field and that this feet from 70 is about quarter corner of this thereof. and in clear view road court, too,

3. No the attached considerable significance to the rock to which we have alluded. It not found in a the rock was mound or in is true placed indicate that it had as to such testimony, point found, but, the in view of all of at the locality, particularly the that as to cloudbursts in concluding that it had been car justified in court was at which it was distance from ried short part originally placed. of the The effort on justifying circumstance to conceal this stone suspicion looking his case. in with evidence, the court think, of all of the in view We establishing quarter corner justified was in in field notes the road call for reference where it did.

4. The rule which should control in this situation is opinion by Supreme in unanimous stated States, speaking through Court of the United Mr. Justice may Story, “It laid wherein he said: be down as an yield rule, that course and to natural universal distance wanting, objects. But where these are ascertained reconciled, and the course and distance cannot be there obliges prefer us to the one universal rule that no exist, may in which the one or the or the other. Cases preferred, upon a minute examination of other Bowmar, Heirs v. all Preston’s the circumstances.” 48 Nev. road the instant Ed. 336. The L. Wheat. accessory certainly object,” an case an “ascertained was opinion. foregoing used in the the sense Co., Dev. 254 Fed. v. Redondo In United States disposing court, of case A. C. C. disputed boundary, involving question said: of proofs general precedence of of “The order gathered determining disputed from the boundaries First, adjudicated is: natural of cases multitude lakes, mountains, objects, or like monuments marks, stakes, second, or other streams; artificial man, as in hand of objects, placed made or case; third, in documents and distances this courses writings prescribing reporting the or establishment or the rule lines; lastly, quantity. But recitals proceeds upon imperative. considerations is not fallibility certainty evidences comparative public authority, qualified intention of the prescribed. private, by *7 construction, it is and, like all such rules is one of rule adaptable final, to circumstances.” but is not conclusive Burns, U. also, Security 193 S. See, L. & Co. v. Ex. Clark, Surveying Sup. 425, 48 L. Ct. Ed. Boundaries, 415. and sec. nothing Andrews, see in the

We can case Jones v. 9 S. the case Tex. W. in of Hanson v. Township Rock, of Red 4 D. S. N. W. fact, they accept conflict the rule stated. In both rule, governed particular is but in the case by expressed in United v. Redondo the idea States Dev. Co., supra, that to effect rule is one of construc- rules, and, final, tion, like not conclusive or all such is adaptable circumstances. is to 5. A apt motion was made argued time and and submitted time this argued case was on the merits, portion to appellant’s open strike certain ing brief. The upon matter alluded an to is attack one of the witnesses who testified defendant, behalf for, and is justification, uncalled inexcusable, without gross privilege and enjoyed abuse an attorney. sustained, It is ordered that the motion be complained and that the matter of be stricken from appellant’s opening brief. be, judgment that and is further ordered hereby,

same affirmed. is

Ducker, I C. J.: concur.

Sanders, I J.: dissent. Rehearing On Motion to Strike and Petition for February 9, 1925. 232 Pac. 1080. Appeal Reply Rehearing

1. and Error —Frivolous to Petition for Stricken. Respondent’s reply appellant’s petition rehearing for alleging petition matter, contained scurrilous char- and acterizing “balderdash,” etc., its contents as will stricken as frivolous. p. 251S, 4See C. n. J. reply petition

On motion rehearing to strike for petition rehearing. granted, and on for Motion to strike rehearing and denied.

OPINION

By Court, Coleman, C. J.: appellant

Counsel for has moved to strike from the reply files respondent of the court the petition to the rehearing upon ground (1) it was not filed within the time allowed court; the rules of the (2) reply sham, “reasons the said frivolous, irrelevant, and that the same is scandal- ous, disrespectful court, the above-entitled an unwarranted and libelous reflection counsel for *8 appellant.”

We will not reason, consider the first since we think granted ground the motion should be on the reply opening paragraph reply is frivolous. The reads (cid:127) regret up “It is with much that we take the task of replying alleged petition rehearing to the for on this 48 Nev. necessary find it Regret we even

appeal. should wholly composed screed, almost to read scurrilous fiction, billingsgate, abuse falsehood and and balderdash against insinuations, contemptuous not and vile and counsel, witnesses defendant his court, judg- rendered its the trial which also defendant, and the members of ment in favor court, judgment.” this which affirmed many Throughout reply such statements found. pass upon the merits of

We will not undertake they we can see quoted. Be true or false statements language, justification the use such no or excuse for Certainly argument. a written in an either oral disposition of court, engaged in the consideration up matters, time taken have its should not serious charges. language in no having can Such read such presented, solving problems way aid the court litigant against a and mind should not be influenced its counsel, purpose of its the real or diverted from Elbert, undertaking. Green v. 3 C. J. Incidentally 34 L. Ed. 11 S. Ct. U. S. that, respondent may say for we if counsel rehearing petition scur- opinion contains that the for by a motion matter, have attacked it he should rilous appellant. counsel for than attack to strike rather reply petition be stricken. think to the should We It is so ordered. Rehearing

On Petition for By Court, Coleman, C. J.: petition A rehearing strenuous for has presented. The first matter to which our attention language opinion is directed is in the former which appellant consider counsel reflection them. single criticism, was not our intention them out anything and we do not think we justifies said again the conclusion reached counsel. After review- ing record, we see no reason to retract what we opinion. said in that *9 rehearing: quote petition from the for a

We paragraph opinion shows, quite “The second in the clearly, the court missed the main in the whole paragraph case. This reads follows: ‘A determina- parties depends entirely tion issues between the quarter-section the correct location of the north corner of section since the is admitted to of the land be the owner to the east of the true line by parties, between tracts claimed and the ” defendant of tract west of this line.’ then Counsel agreed stipulated parties

“It was between the respective premises that the line between their originally by government was fixed the United States survey. case, pleadings The issue in the under the stipulation, by under the cannot now framed court, unless, course, the court have meant the location of this comer as fixed the United States government surveyor, and not the location that some might or even conclude was correct.” presume any

How could counsel that we meant other quarter-section than the one located survey? government quarter- There could one be but think it a corner. We waste of time to undertake point. a serious consideration of such petition, we are examination After a careful point made in the other greater merit unable see disposed of. just than in the one rehearing

A is denied.

Ducker, I concur. J.: I

Sanders, dissent. J.: notes