Westphal v. Schultz

Orton, J. The land recovered in this action is a strip between the north and south half of the northwest quarter of section 2, township 20 north, range 16 east. This section is fractional, and is bounded on the north by the town line. It appears from the government survey and field notes, that the north half of said quarter section contains 96 and 6-100 acres, [78] and the south half 80 acres, and that the whole length of the west Tine of the quarter is 43 chains and 87 links. It appears upon a resurvey, allowing full 80 acres to the south half of the quarter, the north half contains less than the number of acres called for by the government survey, and this deficiency in the excess is apportioned between the number of acres, as marked, of the two halves of the quarter, which gives the strip here claimed and recovered. ' The section corner posts and the quarter posts were in existence, by which the survey was made; but no eighth and sixteenth corner posts were ever established, and these corners are therefore found and located by the resurvey as above. The rule by which this resurvey was made is cleai’ly defined by section 4, ch. 323, Laws of 1860, as follows: “ "Whenever a surveyor is required*.to subdivide a quarter section bordering on the north boundary of a township, he shall establish the sixteenth-section corner at a distance twenty chains north of the quarter-section corner, unless the quarter section shall exceed or be less than the original survey, in which case said sixteenth corner shall be established in exact ratio to such excess or deficiency.” This rule is made applicable to all fractional sections by section 5, ch. 120, Laws of 1862, and in the late revision it is expressed in the following language: “Unless the quarter line vary in actual length from the length stated in the original survey, in which case such sixteenth corner shall he established at a greater or less distance, in exact ratio to the excess or deficiency in the actual length of the quarter line.” The case of Jones v. Kimble et al., 19 Wis., 430, was one in which the quarter posts of a fractional section, bounded upon the north by a township line, were lost, and they were established by a resurvey according to the above rule. In that case this court fully approved and sanctioned this rule of the statute as being right, and cited favorably the case of Moreland v. Page, 2 Clarke (Iowa), 139, which is the leading [79] case upon tlie question, and in favor of the rule. Since the above decision by this court, the correctness of this rule has not been an open question. The authorities cited by the learned counsel of the appellant, which require section-morner posts and quarter posts, and other monuments fixed by the original survey, to be consulted in all resurveys, and which make such monuments govern, are inapplicable, because here no eighth or sixteenth corners were established by the original survey; and they have been found and fixed by this resurvev, according to the above rule, from the section-corner posts and quarter posts which were found in existence as set by the original survey. The findings of the learned judge of the circuit court were correct. By the Court. — The judgment of the circuit court is affirmed,'with costs.