Lawson v. Viola Township

MORIARTY, C. The respondent sued the appellant township, alleging that he was the owner of the northwest quarter of section 3 in said township, and that, in grading a road along the west side of said land, the township had taken from' said land a strip outside the legal' limits of the highway) thereby appropriating about 2% acres of respondent’s land and téaring down certain of his fences. , The case was tried to1 the court, without a jury, and1 the. court made findings favorable to plaintiff’s contentions and entered judgment against the defendant township in the sum of $175. From such judgment and an order denying a new trial, this appeal is taken. The sole contention raised by the assignments and briefs, concerns the true location of the' quarter corner at the southwest corner of respondent’s land. The evidence shows that a road, on or near the west line of this land., has been in use for over 30 years and1 had been graded a little, in low spots only. A county bridge had teen erected on-.the line of this old road, crossing a small creek, a lit-tle south of the south line of respondent’s land. Fences had' been built many years ago> about 2 rods east and 2 rods west óf the- center of this' old road. The appellant township has recently graded a new road which coincides with the old ’ road at the northwest corner of respondent’s land, but is about 87 feet east of the center of the old road, at the south line of said. land. Respondent had a fence about 2 rods east of the center line of the old road anct running parallel 'therewith. The construction of the new road removed part of this fence and left the southwest corner post .thereof a considerable distance west of this new road igrade. .It is undisputed that this new grade renders the land occupied practically valueless for farming purposes. One Schultz, a former owner of the respondent’s land, testified that he saw the survey mounds and stakes at the northwest corner and the southwest corner of this land over 40 years ago, that he established the road between those mounds in 1884 by putting up stakes on the mounds and driving his team' and wagon straight between them. He testified1'that when he did this the markings were still fresh, and that the old road followed the line thus established. He also testified that he set the corner post — 557 — at the southwest corner of the land now owned -by respondent, and' that he set said post about 2 rods east of the quarter corner mound. And he testified that áai-d post was so set at the point where respondent’s corner post now stands, between the new road and the old road. Another witness testified that he drew hay along the old road more than 20 years ago, and that what he believed to be survey pits were .in the track of that old' road about 2 rods west of the southwest corner of respondent’s fence. Other witnesses testified; to the long continued use of the old road and the presence of the fences on ’both sides thereof. The government surveyor’s field notes are in evidence. They show that a random line was run due north from the southwest corner of section 3, and that, at 80 chains and 25 links north of that corner, this random line intersected the township line 65 links west of the section corner established on said township line. Fkom this section corner a line was run 28 minutes west of'south for a distance of 40 chains and 25 links, and a permanent quarter mound established at that point. Two surveyors testified. The one sworn on behalf of appellant testified that the center of the new grade was a straight line, between the two section corners. But he admitted that he relied upon hearsay as to the. location of said corners. He testified that, in cases where there was .a variation in surveys such as that shown by the field notes, the line was run straight from section corner to section corner. • " A surveyor sworn on behalf of respondent testified that, in-such cases, the error is all thrown into the north half of the sec-' tion, making the change in direction at the quarter corner. The trial court made findings to the effect that the old road was the true line. Appellant contends that this is not supported by the evidence. In contentions of this class, two distinct classes of cases are recognized: First, obliterated corner markings, -where the original monuments o-f the survey are no longer visible, but the location of such monuments can be established by” evidence. Second, lost corners, where the location of the monuments can neither be discerned- nor established by evidence. The rule established by the courts is as follows-: Where the location of the original monument can be found, or can — 558 — be established by evidence, such location shall be held to the true corner, regardless of the Jfact that resurveys may show that' it should have -been located elsewhere. Hoekman v. Iowa Civil Township, 28 S. D. 206, 132 N. W. 1004; Beardsley v. Crane, 52 Minn. 537, 54 N. W. 740; Nesselrode v. Parish, 59. Iowa, 570, 13 N. W. 746; Ogilvie v. Copeland, 145 Ill. 98, 33 N. E. 1085; Randall v. Burk Township, 4 S. D. 337, 57 N. W. 4; Byrne v. McKeachie, 34 S. D. 589, 149 N. W. 552. But, where, the location of the original monument can neither be discerned nor established by evidence, the comer may be established -by a new survey, made from points that can be determined1 and in accordance with the field notes of the original •survey. Randall v. Burk Township, supra.; Washington Rock Co. v. Young, 29 Utah, 108, 80 P. 382, 110 Am. St. Rep. 666. In the instant case, the trial court saw fit to treat the corner- in dispute as an obliterated corner and not as a lost comer. And, on that theory, that court found that the southwest corner of respondent’s land was at a point 87% feet west of a true line between the northwest corner of section 3 and the southwest corner of section 3. In other words, that the grade of the new road, which appellant’s surveyor testified was centered upon a straight line between the two- section corners, is 87% feet east of the government survey line ,at the point where it crosses the south line of respondent’s land. If the trial court believed the evidence as to the location of the original survey ‘ monuments, the case comes squarely within the decision of this court in Randall v. B-urk Township, supra. There is substantial evidence to support the findings of the trial court, and we cannot say that there- is any preponderance of evidence against such findings. Therefore this court will treat the fin-dings as conclusive. The judgment and order appealed from are affirmed.