Talbot v. Smith

Mr. Justice Eakin delivered the opinion of the court. 1. It may be taken as conceded by plaintiff that the descriptions in the deeds executed by Talbot and wife to Watson and Beal include the ground claimed by her in this suit. As there is neither allegation nor proof to the contrary, plaintiff’s principal reliance for recovery is upon surveys of the claim purporting to establish the dividing line between the north half .and the south half of the claim, and the assumption that the deeds were not intended to convey any ground south of said division, line; also, that the building of the fence by Watson and Beal near the south line of their land established irrevocably [120] the fence as the south line of their land. Plaintiff admits that the division line of the claim for which she contends and upon which her recovery here depends is not an east and west line through the center of the claim, but, commencing at the east side of the claim, diverges north of west, and constitutes the north line of the ground she is contending for, and the quarter-section line is the south line thereof, and, to establish the division line of the claim, she offers in evidence the field notes of a survey made on January 15, 1869, by A. J. Stevenson, a county surveyor, and then proceeds to identify the stakes and corners mentioned in said field notes as indicating hermorth line. It does not appear at whose request Stevenson made that survey, but it was not at the request of John B. or Sarah Ann Talbot. The heading of his field notes is: “Field notes of the survey through the middle of Section 8, Tp. 1 ' S., B. 1 East.” It is then stated therein that he commenced at the quarter-section corner between sections 8 .and 9 and ran west, setting certain stakes as he advanced as permanent corners, among others, for the southeast and southwest comers of the Beal and Watson tracts, which are probably the stakes for which plaintiff is now contending. His notes give his last distance at “80 chains to section line, no trace of % post to be found,” referring to the quarter-section post on the west line of section 8. This shows that he did not locate the quarter-section line, and renders the survey wholly unreliable. The General Land Office of the United States provides the method for the subdivision of sections as follows: “To run straight lines from the established quarter-section corners, United States surveys, to the opposite corresponding comers. The point of intersection of the lines thus run will be the corner common to the several quarter-sections.” It also provides for the re-establishment of lost or obliterated corners. In case of a quarter-section corner: “The missing quarter-section comer must be re-established equidis [121] tant between the section corners marking the line, according to the field notes of the original survey.” See Circular of General Land Office, March 14, 1901. Therefore, before he could locate the quarter-section line, he must find the opposite corresponding quarter-section corners, and, if obliterated, he must re-establish them from the section corners, and, if such a section corner is obliterated, he must also re-establish that in the manner provided by the General Land Office. Therefore Stevenson did not ascertain the quarter-section line, and could not establish any corners abutting on that line (which he was evidently trying to do), until he had located it. Plaintiff’s reliance upon this survey is on the assumption that it was on the quarter-section line, as intended by the surveyor, and yet describes the south line as on the quarter-section line. However, regardless of any of the surveys offered in evidence, the descriptions in the deeds are conclusive. 2. The rule that permanent and visible monuments are paramount to measurements has no application here. It only applies to such boundaries and monuments mentioned in the conveyance. It is a statutory provision (Section 867, B. & C. Comp.), and provides: “The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there is no other sufficient circumstance to determine it. * * (2) When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurements either of lines, angles, or surfaces, the boundaries or monuments are paramount.” 3. Where no monuments are mentioned in deeds, the descriptions are not controlled by monuments erected later. John B. and Sarah Ann Talbot owned the whole claim at the time of the execution of these deeds, and knew its dimensions and understood and intended that 160 rods from the north line of the claim would take to the center line of the claim. That they so understood and [122] intended .appears also from the deed to Fort, executed January 30, 1869, the description in which commences at a point 40 rods east of the quarter-section corner on the west side of section 8, and describes a tract south and east therefrom 160 rods square, which it states is the “southwest quarter of the donation claim of John B. and Sarah Ann Talbot.” This shows they recognized the quarter-section line as the dividing line of the claim. Thus the south line of the Watson tract and the north line of the Fort tract are identical for a distance of 40 rods, where the tracts are contiguous, and include a portion of the land now claimed by plaintiff. The conclusion is irresistible that the deeds from the Talbots to defendants’ grantors take to the middle line of the section, and is conclusive in this case, unless defendants or their grantors have in some manner been deprived of it. 4. It is urged by plaintiff, however, that the line between the north and the south halves of the claim had been surveyed and marked on the ground, and the south boundary of the Watson and Beal tracts were marked on that line. The only surveys of that line were those made by Burrage in September, 1872, and by Hurlburt in December, 1887, neither of which was made for defendants or their predecessors in interest. And the Stevenson survey was not intended as the dividing line of the claim, but the quarter-section line of section 8, which was clearly wrong. All of these surveys were made long after the execution of the deeds. The date of the Henry survey is not disclosed, but plaintiff says it was after the year 1868 and is therefore subsequent to the deeds. It was not an establishment of the center line of the claim, but was only a survey of the tract according to the deed to Watson, and must be presumed to extend the south line of the tract to the center line of the section in the absence of monuments. But no monuments set by him are located or identified now. And nothing in that survey or the fact that it was made [123] can limit or control the description in the deed. The plea in estoppel, alleged in plaintiff’s reply, is only a statement of the titles of Watson and Beal, and that they built a fence on their south line, but contains no element of estoppel. If, by mistake, Watson or Beal built a fence which either supposed to be on the south line of his land, he is not thereby precluded from now claiming land outside of the fence in the absence of adverse occupancy thereof by plaintiff for 10 years under a claim of title, which is neither alleged nor proven. Sommer v. Compton, 52 Or. 173 (96 Pac. 124: 96 Pac. 1065); King v. Brigham, 23 Or. 262 (31 Pac. 601: 18 L. R. A. 361). All that is said in plaintiff’s brief as to traditional evidence, and as to the presumption arising from the location of the fence, can have but little weight in the face of a deed that is plain, explicit, and unambiguous. There is no testimony tending to show that Talbot and his wife ever questioned the descriptions contained in the deeds to Fort, Watson, and Beal, or that the division line of the claim was other than approximately the quarter section line. And that is what these surveyors were seeking to locate, but no two of them located 'it on the same line. Plaintiff testified that “there was no discussion about that line or that piece of land until Mr. McQuinn and Mr. Hurlburt were in dispute about dividing the claim equally between Father’s half and Mother’s half. That survey is the survey we sold from and lived by,” meaning the Henry survey, which does not locate the division line. But, wherever the quarter section line or the division line of the claim may be located, it cannot control the descriptions in the deeds. The decree of the circuit court is affirmed. Affirmed.