Schwab v. Stoneback

Opinion by G-keen, C.: Jacob Stoneback sued Albert Schwab in justice’s court in Clay county, for trespassing upon certain land, described as lot number 10, in section 8, township 7 south, of range 7 east, and removing therefrom a wire fence, alleged to be worth $20, and asked for double damages. Albert Schwab answered that he was the tenant of John Schwab, and had rented and cultivated lot 7 of the same section of which lot 10 was a part; that his landlord had been [613] in peaceable possession of lot 7 since May, 1870. He alleged that the land from which the fence was removed was a part of lot 7, and that the title, ownership and possession of the same was in John Schwab, except as the defendant used and occupied it for the purpose of raising a crop thereon. Upon the filing of the bill of particulars of the defendant, the justice of the peace certified the case to the district court, where it was tried, and resulted in a judgment in favor of Stone-back for the sum of $13 damages. The plaintiff below based his right to the land from which the fence was taken upon a survey made by the county surveyor, under ¶¶ 1835 to 1839, General Statutes of 1889. The defendant claimed the land by reason of continuous possession for more than 17 years, and by parol agreement locating and settling the boundary line. It will be observed that the real issue between the parties was the true location of the line between lots 7 and 10. The court below instructed the jury that the survey made by the county surveyor was conclusive as to the boundary line between the two tracts of land, and instructed the jury to bring in a verdict for the plaintiff. This, it is claimed, was error. The survey was attempted to be made under ¶ 1836 of the General Statutes of 1889, which reads as follows: “Whenever the owner or owners of one or more tracts of land in this state shall desire to establish permanently the corners or boundaries thereof, and who will not enter into the written agreement mentioned in §1 of this act, he or they shall notify the county surveyor of the county in which said land is situated, who shall, on receipt of said notice, forthwith notify all parties instructed [interested] in said survey, of the lines [time] of making the same, and the lines or corners to be established, which notice shall be served as follows, to wit: If the party or parties are residents of the county in which such land is situate, the notice shall be in writing, and shall be served at least 10 days prior to the time of making the said survey, by delivering to such party a copy thereof, or leaving the same at his usual place of residence in said county. In case of a non-resident of the county, the notice shall be served by publishing the same in some newspaper published [614] in the county, for four consecutive weeks prior to the time of making such survey; and in case no paper is published in said county, then in some newspaper in the state of general circulation in said county. At the time mentioned in said notice the said surveyor shall proceed to make the survey of said boundaries. He shall have power to administer oaths and take the evidence of any person who may be able to identify any original government or other legally-established corner, or witness thereto, or government line tree, or other noted object. Such evidence shall be reduced to writing, signed by the witness, and, together with an accurate plat and notes of such survey, shall be filed in the office of register of deeds of the county within 10 days after the completion of said survey.” The notice recited that a survey would be made of section 8, town 7, of range 2 east, on Monday, the 7th day of February, 1887. On the day named the surveyor appeared, and commenced making the survey about noon. John Schwab, the owner of lot 7, appeared some time in the afternoon, and stated that he would not have anything to do with the survey. The surveyor was a portion of two days making the first survey, and before he concluded Schwab and another party interested thought they could furnish some proof as to an old corner-stone. The surveyor did not conclude his work, but waited until the 22d day of April, 1887, when he went back and completed the survey, and filed his report on the 30th day of the same month, in the office of the register of deeds of the county. Schwab had no notice of this last survey or the filing of the report. It will be observed that the statute requires the surveyor to make the survey at the time mentioned in the notice, and he must file the evidence taken, together with an accurate plat of the land surveyed, in the office of register of deeds of the county, within 10 days after the completion of the survey. This he did not do. There was nothing to show an adjournment for any definite time. We do not think that there was such a compliance with the statute as made the survey and plat filed by the surveyor on the 30th of April conclusive. The subsequent section of the statute gives any [615] person interested the right to appeal from the report of the surveyor to the district court within 30 days from the filing of the report. No one could tell when to take an appeal, if the surveyor were allowed any indefinite time in which to conclude the survey and file his report. It was, therefore, material error for the court to hold that the survey made by the county surveyor was final, conclusive, and binding, and refuse to admit any evidence as to the location of the division line between lots 7 and 10 prior to the survey. The report and plat were doubtless competent evidence, as any other private survey might have been, but it was not conclusive, for the reason that the statute was not strictly pursued. (Holliday v. Maddox, 39 Kas. 359.) The plaintiff below relied upon a statutory proceeding in locating the division line between the two lots of the section, and the requirements of the statute should have been substantially followed. In the case of Marsh v. Chestnut, 14 Ill. 224, it was said: “ It is a sound and inflexible rule of law, that where special proceedings are authorized by statute, by which the estate of one man may be diverted and transferred to another, every material provision of the. statute must be complied with. The owner has a right to insist upon a strict performance of all the material requirements, especially those designed for his security, and the non-observance of which may operate to his prejudice.” We recommend that the judgment of the district court be reversed, and a new trial be granted. By the Court: It is so ordered. All the Justices concurring.