Simmons v. Jamieson

The opinion of the court was delivered by Mount, J. This is an action in ejectment and for damages. Plaintiffs allege in their complaint that they are the owners and in possession of an irregular tract of tide land described in section 11, township 18 north, of range 3 W., W. M., in Thurston county, on Eld inlet; that the defendant unlawfully took possession of a part of said land, and is using the same for rolling and booming logs thereon, to plaintiffs’ damage. The defendant’s answer admits that plaintiffs are the owners of the land described in the com [620] plaint, and denies all the other allegations of the • complaint. The case was tried before a jury, which returned a verdict in favor of the defendant. Plaintiffs appeal from a judgment entered on the verdict. The facts in the case are substantially as follows: Appellants are entitled to possession of a tract of tide land commonly known as the “Simmons tract” on Eld inlet. Respondent is the owner of a tract of tide land known as the “Walker tract,” lying immediately to the north of appellants’ land. Both tracts were sold by the state, which originally owned the whole thereof. The Walker tract was a prior sale.- When the Simmons tract was sold, the southern boundary of the Walker tract was made the northern boundary of the Simmons tract. At the trial the only question of fact in the case was the location of the boundary between these two pieces of land. Plaintiffs claimed that a log boom and roll way operated by defendant were south of the Walker tract and on plaintiffs’ land, while defendant claimed they were not. The whole controversy turned on the location of the meander corner between sections 2 and 11, township 18 north, range 3 W., W. M., as the same was originally established by the government survey in 1856. It was not disputed at the trial that the post or monument marking this corner was lost, but plaintiffs and their witnesses testified that there was evidence of one of the original bearing trees, from which the location of the corner could be determined, and from which the measurements described in the deed from the state of the Walker tract made the south line of the Walker tract about 300 feet north of where defendant claimed it was; while defendant and his witnesses claimed the meander corner was further south than the place fixed by plaintiffs. This was the whole of the controversy. Some twenty621 five assignments of error are made by appellants. Many of these assignments are without foundation, and, if error, were harmless. We shall examine only those which appear to us to be relied upon. During the trial appellants moved the court to strike out all the evidence on the part of the respondent given by the witness L. M. Rice, which motion the court denied. Based upon this same ruling, the court also denied a motion for a directed verdict, and overruled a motion for a new trial, and errors are assigned upon all these rulings. The witness Rice was a surveyor, and testified, in substance, that he began his survey at the section corner between sections 11 and 12, township 18 north, of range 3 W., W. M., which is a known comer; that he ran out the meander line according to the field notes of the government survey; and that, according to his measurement, the meander corner at the initial point of the Walker tract was some 300 feet south of where the plaintiffs’ witnesses placed it. He also testified that he started his survey from the initial point of the Simmons tract, and, following out the descrijition of that tract, it would overlap the Walker tract about 130 feet; that he did not survey the Walker tract. There was much other evidence given by him upon these lines. It is argued by appellants that all this evidence was irrelevant and immaterial, because Mr. Rice failed to do those things which a surveyor is required to do in order to find a lost corner, and that he observed none of the well established rules of surveying. Erom an examination of the authorities cited we are convinced that the witness followed one of the rules laid down by Bellows & Hodgman at page 333 in their “Manual of Land Surveying,” which is recognized among surveyors as a standard authority, as follows: [622] “Lost meander corners are to be restored by running tbe line from tbe nearest known corner tbe direction and distance called for by tbe notes of tbe original survey.” See, also, Bryan v. Beckley, 12 Am. Dec. 276; Billingsley v. Bates, 30 Ala. 376 (68 Am. Dec. 126) ; Lewis v. Prien, 98 Wis. 87 (73 N. W. 664). Sucb being one of tbe rules for establishing lost corners, tbe evidence given by Rice was material for tbe purpose, and proper for tbe jury to consider, and it was, therefore, not error for tbe court to refuse to strike it out. For tbe same reason it was not error to deny tbe motion for a directed verdict and tbe motion for a new trial upon tbe same ground. Appellants argue that tbe motion for a new trial should have been granted because tbe verdict does not comply with § 5510, Bal. Code, and is therefore invalid. Tbe verdict, omitting tbe formal parts, is as follows: “We, tbe jury, duly empaneled in tbe above entitled cause, say that we find for tbe defendant. “R. P. Shoecraft, Foreman.” Tbe statute (§5510) is as follows: “Tbe jury by their verdict shall find as follows: . 2. If tbe verdict be for tbe defendant, that tbe plaintiff is not entitled to tbe possession of tbe property described in tbe complaint, or to sucb part thereof as tbe defendant defends for, and tbe estate in such property, or part thereof, or license, or right to tbe possession of either, established on the trial by tbe defendant, if any, in effect as tbe same is required to be pleaded.” This statute cannot apply to this case, because tbe answer of tbe defendant admits that tbe plaintiffs are entitled to tbe possession of tbe land described in tbe complaint. It denies that tbe defendant was in possession of any of it. Tbe dispute was directed to tbe location of tbe boundary line. Since tbe answer admits that the [623] plaintiffs are the owners and in possession of all the land described in the complaint, the jury, upon the trial, which involved only the location of the boundary, could not say by their verdict "that the plaintiff is not entitled to the possession of the property described in the complaint," without contradicting a fact admitted by the pleadings. The statute, therefore, does not apply to a case of this kind. The general verdict was sufficient. The errors above discussed appear to be the principal ones relied upon. Numerous others are assigned upon the instructions. We have examined all of them, and find that the instructions given were full, and fairly stated the law to the jury. There was no error in the trial. The judgment is therefore affirmed. Fullerton, C. J., and Anders, Hadley and Dunbar, JJ., concur.