Vance v. Pritchard

DeviN, J. The question presented by this appeal is whether, upon the facts found by the judge below, the plaintiff was entitled as a matter of law to the order of survey of plaintiff’s land as prayed. Under the circumstances of this case, as they appear from the record, and the findings of the court, we are not inclined to hold for error the denial of plaintiff’s motion. The ruling complained of was made pursuant to the opinion of the court below, based upon the facts found, that it was not necessary or proper to order a court survey of the boundaries of plaintiff’s 2,180 acres of land. It is provided in C. S., 364, that, “When in any suit pending in the Superior Court the boundaries of land are drawn in question, the court may, if deemed necessary, order a survey of the land in dispute, agreeable to the boundaries and lines expressed in each party’s title.” The statute further provides that for such surveys the court shall make proper allowance to the surveyor or surveyors to be taxed among the costs of the suit. The statute vests in the court a sound discretion within the limits defined. It appears here that plaintiff desires a court survey of 2,180 acres of mountain land, affecting the rights of a large number of persons and landowners who are not parties to the action, for the purpose of providing evidence to establish his title and to show that defendant’s three small tracts of land aggregating 69 acres are embraced within the bound [277] aries of plaintiff’s deed. Tbe case, as it is now constituted, does not appear to involve tbe location of boundary lines between tbe lands of tbe plaintiff and defendants. Tbe ruling of tbe court below does not prevent plaintiff from having a survey made, and obtaining tbe evidence wbicb be is informed can be made available thereby. Judgment affirmed.