McAnich v. Hulse

McClain, J. The facts necessary for the decision of this appeal are briefly as follows: One James Hulse, in 1889, died seised of the east of the west £ of the southwest and the east J of the southwest ¿, of section 8, in township 18, range 13, Poweshiek county, which premises he had owned and occupied for about 25 years. By partition proceedings, the east 47 acres of this tract were assigned to his son Lewis, and the balance to his widow, who is the defendant in this action. In 1890 defendant deeded to Lewis the west 40 of the tract (that is the east -J of the west -J of the southwest ¿) in exchange for the east of the east of the southwest -J, which belonged to him. In 1891, Lewis Hulse died, and the plaintiffs in this action own through him the 40-acre tract conveyed to him by defendant. At the time of the exchange there were improvements, consisting of a larger and smaller dwelling house, with barn, cribs, and other buildings, on the tract, which had belonged ta defendant* and near the boundary line between the tract retained bv [60] her and the 40-acre tract deeded to Lewis. Between the time-of the exchange and the death of Lewis defendant lived in. the larger of these houses, and Lewis, with his family, in the smaller one, further east. Plaintiffs now claim that the eastern boundary of their 40-acre tract is east of the-larger house, and that this house and some of the other improvements belong to them, while defendant claims that the-line is 21 feet west of the house, and that none of the improvements are upon plaintiffs’ land. The fact that the portion of the premises in controversy, which is a wedge-shaped piece some 60 or 80 feet wide at the north end, and running; to a point at the south end, includes these buildings is what gives significance to the controversy. 1 The first question is whether the boundary line between the property of plaintiffs and that of defendant runs east of the dwelling house, instead of substantially where the-fence stands, in reference to which the premises have up to this time been occupied. This line is one substantially followed by a fence constructed soon after the death of Lewis Hulse by the son of defendant, for defendant and the plaintiff Lucy McAnich, and recognized by the parties as the boundary line for several years afteiLewis ILulse’s death, and -until after' a certain survey was-made in 1894 by one Buck, county surveyor, which will be-hereafter more fully referred to. Plaintiffs’ claim rests entirely upon the survey made by said Buck, county surveyor,, who testifies that, on establishing the lines by means of measurements from the government corners, he found the line between the east % and the west of the southwest ^ of the section would run some 25 feet east of the larger dwelling-house. Plaintiffs contend- that this line established by the-county surveyor is presumptively correct. Code, sections 534, 538. The latter of these sections, which is the one most explicit as to the effect to be given to the survey, provides-that it is the copy of the field notes, plat, and record duly ■•'ertified which is to be presumptive evidence, and that itc [61] is to be snob evidence “between those persons who join in requesting it and any other person then concerned who has reasonable notice that such survey is to be made and the time thereof.” One serious difficulty with'the Buck survey is that it does not appear ever to have been made of record •at all. At any rate, no record of it was introduced in this ■case. It is set forth wholly hy the oral evidence of Buck himself. No doubt his evidence is entirely competent, like that of any other witness, to prove the line in controversy, but it does not appear that any presumption is to be entertained in behalf of his oral evidence. Again, there is only the most meager evidence that defendant had any knowledge ■of this survey. When Buck was making it she seems to have agreed in an indefinite way that she would share in the •expense of some sort of survey, but it does not at all appear that she knew who was to make it, and she afterwards paid her share of the expense, only after considerable protest. Furthermore, Buck’s survey never seems to have been completed, and for that reason probably was never made a matter •of record. lie came back to revise it at the request of a son •of defendant, who pretended to act in defendant’s behalf, but who never furnished him the written request from defendant which he asked, and finally gave up the job while still attempting to verify the location of the quarter post on the Avest line of the section, Avhieh Avill be referred to later on. It does not seem, therefore, that Buck’s survey Avas so far •complete and of record that it ought to be given any presumptive Aveight under the statute. But, even treating it as presumptively correct, it is not to be regarded as conclusive, •and its presumptive weight is certainly seriously affected by the circumstances under which it is made. [61] There is further evidence of the line in question which A\re are required to consider. The correctness of Buck’s survey depends entirely upon the starting point at the quarter post on the Avest line of this section. This post Avas located about 1853 by one Talbot, and the highway Avas established, fenced, and has ever since been maintained, [62] in accordance with that location. Subsequently one Greer-established the same point as about 62 feet further east, and ■ entirely outside, the limits of the highway, and it was the Greer post which Buck accepted in making his measurements. Now, as a matter of fact, all the dividing lines in the west half of the section referred to in the evidence were established by reference to the Talbot post, and the line between James Hulse and the party owning west of him was marked by a fence which had been in existence for 25 years at the time of his death. Therefore, when the 40 claimed by plaintiff was deeded to Louis Hulse, it was understood by all parties that it would be measured from the west line thus-established, and as thus measured the east line of the 40 came some 21 feet west of defendant’s principal dwelling house. Now, the line of the public highway, as laid out along what was supposed to be the west line of this section,, was a fact entitled to be shown in evidence by reputation and usage, as proving the boundaries of the section. This question is not discussed by counsel on either side, but must bo considered by us in determining the true boundary line of this section. Many American cases allow reputation to be proven, even with reference to private boundaries, going further in this respect than the English cases; but all agree that when a private boundary line is conceded to coincide with the line recognized by the public, as for instance in the case of a highway, reputation is admissible. A few cases only need be cited. See Clement v. Packer, 125 U. S. 309, 321 (8 Sup. Ct. Rep. 907, 31 L. Ed. 721); Nys v. Biemeret, 44 Wis. 104; Mullaney v. Duffy, 145 Ill. 559 (33 N. E. Rep. 750); Ralston v. Miller, 3 Band. (Va.) 44; Tate v. Southard, 8 N. C. 45; 2 Jones, Evidence, section 308. James Hulse and his neighbor to the west had their line established for them by the same Talbot who fixed the line for the highway, and the parties to the north, who built a fence supposed to be on the dividing line between the cast and west halves of the Northwest ¿ of the same section, [63] established it at' a point coinciding, with the northern end of the original fence constructed by defendant and Lucy McAnich. All the circumstances, therefore, contra-- - diet the .survey of Buck, and.it is our opinion that the-evidence to be drawn from these circumstances overcomes the presumptive correctness of Buck’s survey, even though it. be found to be entitled to the presumptive weight given by the statute to the record of a survey made by a county-surveyor. If Buck had started from the Talbot corner, he-would not'have found the east line of the 40 in controversy to be east of defendant’s dwelling house, and we are of the-opinion that plaintiffs have failed to make out, by a preponderance of evidence, their right to the strip of land claimed in this action. Therefore the plaintiff’s instructions should be-dismissed. — Reversed.