Bosworth v. Tallman

Cassoday, J. We have had some difficulty in ascertaining the facts as claimed by the respective parties in this case. Only a small portion of the evidence is printed. We regret that the learned counsel for the plaintiffs was detained from orally arguing the case. The only error assigned is that the court denied the plaintiffs’ motion for judgment for the value of the 25?,000 feet mentioned in the special verdict, and only granted judgment for the value of the 60,000 feet found in the verdict. The judgment for the 60,000 feet is based upon the correctness of the assumption or proviso contained in the fourteenth finding as above stated. That is claimed to be an error. For the purposes of this case we shall assume that it was. The question recurs whether it was such an error as was prejudicial to the plaintiffs. Unless it affected their substantial rights, it should not woi’k a reversal. Such is the mandate of the statute. Sec. 2829, 26 R. S. Errors are not to be presumed, even when, assumed. It was incumbent upon the appellants, not only to point out any alleged error, but to make it appear that they were thereby aggrieved. Such is the settled practice of this court. The plaintiffs’ right to judgment for the amount claimed is based upon the assumed accuracy of Sturdevant’s survey and Allen’s survey. The jury assumed the accuracy of each of those surveys in making the fifteenth, sixteenth, and eighteenth findings, and took the average amount cut as determined by both. By both of those surveys the north line of the section was 397 rods and 3 links in length, while the south line was only 320 rods in length. By Sturde-vant’s survey the east line of the section ran straight in nearly a northeasterly and southwesterly direction, and was 181 rods and 5 links in length. By Allen’s survey it ran from the southeast corner of the plaintiffs’ land, slightly to the northeast, for a distance of 128 rods, and then angled sharply to the northeast, making the whole angling line on that side 206 rods. But these assumptions are in direct conflict with the first, third, and fourth findings, which, as appears from the record, were agreed to by the parties on the trial, and the answers written in accordingly. According to those findings the north and south sides of the section were each *of the same length,— 320 rods,— and the east line 165 rods and 3 links. All agree that the west line of the section ran substantially north and south, and was 180 rods and 21 links in length; and also as to the location of the northwest, southwest, and southeast corners; and that the south line of the section ran substantially east and west. The jury did not find the length of the different sides of the section according to the survey of either Sturde-vant or Allen; but each testified to his own survey, and their correctness, respectively, was assumed by the jury as stated; and yet, by each of such surveys, the north side of the section was rods and 3 links longer than stated in the 27 findings by tlie agreement of tbe parties, while the east line of the section, by each of said surveys, was more than 22 rods longer than stated in the findings by the agreement of the parties, besides angling greatly to the northeast, as indicated. The assumption in the fourteenth finding that the north and south quarter-posts should be established equidistant from the northeast and northwest, and the southeast and southwest, section corners was undoubtedly correct. The error assumed in that finding, if any, consists in establishing the east and west quarter-posts equidistant between the northeast and southeast, and northwest and southwest, section corners, instead of making the south half of the section full, and putting the deficiency wholly in the north half of the section, as claimed by the learned counsel for the plaintiffs. In other words, the error claimed is that that finding is upon the assumption that the plaintiffs’ lands did not extend as far north as they in fact extended. But the difficulty grows out of the fact that Dayton & Baldwin owned the lands adjoining the plaintiffs’ on the east as well as on the north, and cut timber on the same .during that winter, according to Sturdevant’s survey; and according to Allen’s survey the east line of the plaintiffs’ land ran from their southeast corner iii an angle, far more to the eastward than the east line as found by the agreement of the parties. ' In other words, the amount and value of the timber found in the fifteenth, sixteenth, and eighteenth findings were upon the assumption that the plaintiffs’ land extended much further east than it in fact did, as appears from the findings agreed upon. That is to say, the fifteenth, sixteenth, and eighteenth findings were based upon the false assumption that the plaintiffs owned a large triangular piece of land, which, as appears from the agreed findings and the admitted facts, belonged to Dayton & Baldwin. From the record before us we cannot say but what all the timber men28 tionecl in the fifteenth, sixteenth, and eighteenth findings, in excess of what the plaintiffs have recovered in the judgment, was in fact out from such triangular piece so belonging to Dayton & Baldwin. If any portion of it was not so cut on such triangular piece, but was cut on the plaintiffs’ land, as assumed in those findings, then the plaintiffs should have made it to appear in the record. In the absence of such showing we_must assume that such excess was cut on the lands of Dayton & Baldwin, notwithstanding the eighteenth finding that the logs described in the complaint belonged to the plaintiffs. That finding clearly was based upon the same false assumption contained in the fifteenth and sixteenth findings. By the Court.— That part of the judgment of the circuit court appealed from is affirmed.