Tucker v. Wyoming Coal Mining Co.

Brard, Justicr. This action was brought by the defendant in error against the plaintiffs in error to recover the possession of a certain strip of land claimed by both parties. The case was tried to a jury, resulting in a verdict and judgment in favor of defendants below. A motion for a new trial made by plaintiff below on the grounds that the verdict and judgment were contrary to and not sustained by the evidence and were contrary to law, was denied; and, within the time allowed by law, said plaintiff moved for a new trial on the ground of newly discovered evidence, which motion was sustained and a new trial granted. From the order granting a new trial, plaintiffs in error bring the case here on error. It is urged, (i) that the motion does not sufficiently state the newly discovered evidence, (2) that it is merely cumulative, and (3) that it fails to show due diligence in discovering it before the trial. It appears that the plaintiffs in errór are the owners of the SE. yi of the NE. ¿4 of Section 24, Tp. 57 N., R. 85 W. of the 6 P. M., in Sheridan County, and that the defendant in error owns the SW.J4 of the NE.J4 of said section, and that the matter in controversy in this case is the location of the true boundary line between these two tracts, and that depends upon the true location of the quarter section corner on the south side of the section. Mr. Huntington, the County Surveyor of Sheridan County, testified on the trial to having made a survey of the section but failed to find a properly marked corner which he could identify as the original quarter section corner set by the government surveyors, but that he found a [103] pile of rock which in courses and distances closely corresponded with all original corners found and identified by him in that locality, except those on the east side of the section. This pile of rock is about 200 or 300 feet north and about 700 feet east of where the quarter corner should be by course and distance from the southeast corner of the section. The quarter section corner on the north, which is fully marked as he states, is likewise substantially the same distance east and north from where it should be by course and distance from the northeast corner, but otherwise corresponds in courses and distances from the other original corners found by him. He found no corners corresponding either in courses or distances from the corner at the northeast or the southeast of the section. ' From his survey he concluded that the pile of rock above mentioned was the true location of the original quarter section corner, and that the east half of the section was short, and subdivided it accordingly. Mr. Williams, a surveyor and engineer, also surveyed this section in June, 1907,-and his testimony corroborates that of Mr. Huntington in nearly every particular as to the original corners found, as to courses and distances and that no corners were found in running west from the section corners on the east side of the section. He further states that he found, on a previous survey, the quarter section corner one mile north of the north quarter section corner of section twenty-four, and that both of these corners were due north of this pile of rock. Mr. Worthington, a surveyor, testified that he surveyed west from the southeast corner of the section for one mile and found no corners. There was no evidence produced on the trial by either party that anyone had discovered this quarter section corner as the same' is described in the government field notes, read in evidence, which describe the corner as marked by a granite stone 10x8x7 inches, 6 inches in, the ground, marked J4 on north face, and a pit north of stone and a mound of earth. [104] .We have referred to the evidence for the purpose of showing clearly the character of the evidence produced on the trial as to the location of this corner. ■ The. first objection to the ruling of the district court urged in the brief of counsel for plaintiffs in error is, that. the motion does not sufficiently set out the newly discovered. evidence. No such objection appears to have been made in the lower court, the motion being resisted there solely on the ground that the newly discovered evidence was cumulative and that the motion and affidavits in its support failed to show diligence. The newly discovered evidence stated in the motion is “the government corner stone, marking the south quarter corner of Section 24, * * * * such corner stone having been discovered in place since the trial of said action, all of which will more fully appear from the affidavits of W. W. Anderson and E- E. Lonabaugh, hereto attached and submitted herewith, in support of this motion.” The affidavit of • Mr. Anderson states fully the manner in which he found the stone, its marking, and the .place where discovered by reference to the place mentioned in the testimony of the witnesses, Huntington and Williams. We think the motion was sufficient, especially in the absence of any objection in the lower court on that ground. It is next contended that the newly discovered evidence is merely cumulative. It is well settled that a new trial will not be granted on account of newly discovered evidence which is merely cumulative. (Link v. U. P. Ry. Co., 3 Wyo. 680; 14 Enc. P. & P. 811.) Cumulative evidence is evidence of the same kind to the same point; but it is not cumulative if it is of a different character and of a separate and distinct fact. In the case of Building Assn. v. McMullen, 59 Kan. 493, the action was upon a bond which was lost and could not be found at the 'time of the trial. The surety on the bond denied its execution. On the trial, testimony was offered that the bond was executed and that one of the signatures thereto was that of the surety. The court said: “This was merely the opinion [105] of experts, which, in character, is distinctly different from the instrument itself upon which the action was brought.” And in a former part of the opinion the court said: “The fact that the testimony may tend to prove the same issue upon which proof was offered on the trial, is not enough to make it cumulative; ■ and whether or not it is cumulative is to be determined from its kind and character, rather than from its effect.” (Guyot v. Butts, 4 Wend. 579; Protection Life Ins. Co. v. Dill, 91 Ill. 174; Wilson v. Plank, 41 Wis. 94.) In this case there was no direct evidence as to the location of the corner in question. No witness claimed to have seen it at any time, and there was nothing found by either of the surveyors that could be identified as the original monument placed by the government surveyors to mark the corner. They treated it as a lost corner and proceeded to re-establish it according to the best evidence at their command, which was by courses and distances from other recognized original corners^ This evidence was secondary in character and of a lower degree than the monument itself, which, if found in place, was conclusive whether its location agreed with the courses and distances called for in the field-notes or not. In retracing the public land surveys the rule is well settled that courses and distances must yield to fixed monuments, and where they do not agree the monuments govern. In Ogilvie v. Copeland, 145 Ill. 98, the court said: “The field-notes and plat are assumed to be correct, until the contrary is shown, and they are important evidence in ascertaining where monuments are located; but if the location of the monument is clearly shown by other evidence to be at a distance different than that given in the field-notes and plat, they must give way.” To the same effect see Britton v. Ferry, 14 Mich. 53; Hess v. Meyer, 73 Mich. 259; Nesselrode v. Parish, 59 Ia. 570; Doolittle v. Bailey, 85 Ia. 389; Vroman v. Dewey, 23 Wis. 530; Greer v. Squire, 9 Wash. 359; Goodman v. Myrick, 5 Ore. 65. We think the difference in the character of the evidence produced upon [106] the trial, and the newly discovered evidence is clear. The former consisted solely of facts from which, in the absence of better evidence, the location of the lost corner may be arrived at as near as may be; while the latter is direct evidence of the exact location of the corner as originally placed. It is evidence of a distinct fact, namely, the existence of the original monument, a fact not shown upon the trial. We think the evidence was not merely cumulative and that there was no error in sustaining the motion on that ground. - The remaining contention is, that diligence to discover the new evidence before the trial is not shown. Whether due diligence was exercised in that respect was a question of fact to be determined by the trial court, and his finding should not be disturbed if there was evidence to support it. It appears that before the trial the plaintiff below caused surveys of the section to be made by two competent surveyors, one of whom was the County Surveyor. This of itself, we think, shows such diligence as men of ordinary prudence exercise in such matters and warranted the court in so finding. Finding no error in the record, the judgment of the District Court is affrmed. ' Affirmed. Potter, C. J., and Scott, J., concur.