Robinson v. Laurer

Opinion by Mr. Justice Moore. [317] 1. The evidence shows that monuments are placed at the northwest corner of section two and the southwest corner of section eleven, as originally set by the government surveyor, and that, measuring from these points, the said fence is about twenty rods south of the section line as evidenced by the government field notes; that no stake or mound could be found at the northwest corner of section eleven, or at the quarter post on the north side of said section as indicated by the field notes, but that such stakes and mounds are found and have been known to exist for about twenty years at the east and west ends of the fence line; that upon surveyors, in the presence of others, digging into these mounds just before this suit was commenced they recovered the ends of stakes which were much rotted and indicated that they had been there many years. The evidence in our judgment shows that these stakes were the ones originally set by the government surveyor, and the points at which these monuments were placed must control in ascertaining the true boundary. The object of the field notes is to furnish a record by means of which the lines can be retraced, and it is presumed that the record so made furnishes a history of the survey, (Codeau v. Elliott, 7 Wash. 205,) but where the original monuments or the points at which they were placed are discoverable, the field notes must yield to the official survey made -upon the ground. There being a conflict between the field notes and the survey, the burden was upon the defendant to show that the stakes set at the points indicated were the monuments of the original survey, and we think he has fully established this fact. 2. It is contended that the court erred in dismissing the suit, and in not appointing a commission to locate the line upon the ground. The statute (section 508, Hill’s Code,) requires the court at the time of entering the de [318] cree to appoint a commission whose duty it shall be to mark out upon the ground the boundary as ascertained or determined by the court. The evidence shows that the line was plainly indicated by the fence, and no doubt the court thought the appointment of the commission would entail additional expense and be of no practical benefit; but since the statute requires the appointment of a commission for that purpose, the court erred in neglecting this duty, for which reason the decree must be modified accordingly, and the cause remanded to the court below with instructions to enter a decree fixing the location of the disputed line, and to appoint a commission to mark the boundary as established by the decree. Modified.