Thoen v. Roche

Gilfillan, C. J. Ejectment. Tbe matter at issue is tbe location of the boundary line between the northeast quarter, owned by plaintiff, and the southeast quarter, owned by defendant, of section thirty-one, this depending on the proper location of the quarter-section post on the east side of the section established by the United States survey. As is frequently the case, that post has disappeared. It appears that, some sixteen years before the trial, one Garrison, a surveyor, made a survey of the east and west line between the north and south half-sections, and, as he supposed, found where the quarter post of the United States survey had been, and set a s take there; also, that a public highway running through the town east and west was on or near the line between the north and south halves of the section. The court below permitted, against objection, a witness who was with Garrison at the survey to answer the question, “Did you find, when you were making that survey with Mr. Garrison, the quarter post on the east side of section thirty one?” The answer to such a question was proper to go to the jury, for, whatever it might be worth, its value was to be tested by further examination as to details. Such posts are set with a view to their being found and recognized on future surveys, and the parties making such surveys may testify directly that they found them The court also admitted, against objection, evidence of common repute in the neighborhood that the stake set by Garrison located correctly the quarter-section post, and also of common repute that the location of the quarter post was right in the center of the highway. The questions as put to the witnesses were general as to time, and included the time down to the trial. The general objection [139] that it was incompetent did not point out with sufficient definiteness the objection that the questions included time after action brought. Had the attention of the court and opposite counsel been called to that objection, it might have been avoided by a slight change in the form of the questions. Where such is the case, the specific objection must be made. There is considerable difference between the English and many American authorities in the application of the rule which admits evidence of common repute on the question of boundaries. The English decisions confine it to cases of boundaries that are matters of public or common interest, such as boundaries of counties, towns, parishes, or manors. Many American decisions go beyond this, some going so far as to apply the rule to cases of purely private boundaries, where no one has any interest in the question but the two owners of adjoining estates. Some of those are without the support of the reason for the rule. The rule rests on necessity, better evidence of the boundary having ceased to exist, and is justified on the theory that where many persons, members of a community more or less extensive, are interested in a common boundary, they will know where it is, and their common assent will prove what they know. Boundaries and monuments for boundaries under the United States system of surveys come within the reason for the rule, and within its application, even under the English decisions. In the first place, the establishment of such boundaries is a public act, and not merely a private act or agreement between two owners of contiguous estates. In the second place, it may, and usually does, come to affect the interest of many persons. Thus, the location of the quarter-section post affects a boundary of eight quarter sections and thirty-two quarter-quarter sections. And, in the third place, highways are frequently laid out, and school districts may be established with reference to such boundary lines. We are therefore of opinion the evidence was competent. The evidence as to an agreement between the plaintiff’s predecessor in title and the defendant locating the line between them, and of acquiescence in, and building fences with reference to, the line so located, was not very full, but there was enough to authorize the jury in finding an agreement that would be binding within [140] the rule, as stated in Beardsley v. Crane, 52 Minn. 537, (54 N. W. 740.) Order affirmed. Buck, J., absent, sick, took no part. (Opinion published 58 N. W. 686.)