Hollingsworth v. Holshausen

Wheeler, C. J. There is no question that the defendant’s survey is anterior in time to the plaintiff's: and that his prior equity must prevail over the plaintiff’s legal certificate, unless the plaintiff's certificate was located upon the land in question prior to the defendant’s survey. Of this the record affords no evidence. There is little doubt the plaintiff’s certificate was, in fact, located prior to the defendant’s survey. But it is impossible to say, from the evidence, that it was upon the land here in question. This it was incumbent on the plaintiff to prove; and there is certainly a [636] failure of proof upon the essential point of the identity of the location. We, therefore, think that the motion for a new trial ought to have prevailed upon the ground that the verdict was not supported by the evidence. It appears that a certificate had been located upon this land, and removed before the defendant made his survey. It is assumed that it was the plaintiff's certificate located by his agent Tipps ; and it is supposed an agent having authority to locate a certificate, had not the authority to change the location. It was proposed by the defendant to prove that persons engaged in locating lands, were accustomed to change their location; and we think it was competent to receive evidence of such custom. If such was the custom, it is reasonable to suppose, in the absence of evidence to the contrary, that the agent in this case had the authority to do whatever was customary in such cases. The custom of persons similarly employed would be evidence of the extent of the authority; the presumption being that the principal had conferred upon his agent, in this instance, a like authority to that usually exercised by persons similarly employed. We are of opinion, therefore, that the evidence ought to have been received. The judgment is reversed and the cause remanded for further proceedings. Reversed and remanded.