Russell v. Senior

Olds, J. This was an appeal taken from a survey under the provisions of section 5955, R. S. 1881. Trial had and a resurvey ordered. There was a resurvey, and the resurvey approved by the court. Within one year from the date of the judgment of the court approving the survey, the appellants filed a bond for costs, and moved the court for a new trial as of right, under section 1064, R. S. 1881, which motion was overruled, and exceptions reserved, and appellants prosecute this appeal and assign as error the overruling of the motion for new trial. It is contended by counsel for appellants thát the survey settled the title to disputed real estate. In this they are in error. In the case of Cleveland v. Obenchain, 107 Ind. 591, this court says : “A land-owner who submits to a survey does not by so doing lose any of his land. In submitting to a survey he does not surrender any valid title that he may have, no matter how it may have been acquired. In not objecting to a survey he does not put himself in the position of surrendering his land, or any part of it.” In the case of Riggs v. Riley, 113 Ind. 208, it was held that a survey establishing a line between adjoining landowners will not defeat a title previously perfected by adverse [521] possession for more than twenty years, nor revive the right of the original owner. See Voltz v. Newbert, 17 Ind. 187. All that a survey does is to establish the line, and it does not ■determine the title to the real estate. It is proper to introduce evidence of possession, and of other facts, to aid in ■ arriving at the true line and boundary, but not for the purpose of settling the title. The authorities we have cited are decisive of the question in this case. There was no error in •overruling the motion for a new trial. Filed April 27, 1889 Judgment affirmed, with costs.