Hopper v. Hickman

Robinson, J. The plaintiff and defendant in this action are owners of adjoining tracts of land in Cooper county. Plaintiff claims that the defendant’s possession extends north of the true boundary between them so as to take in twenty-seven acres of land belonging to him, which defendant denied; hence this suit of ejectment for the disputed strip. The title of the land to each party within the calls of the deed is admitted, so that the only issue in the case is, as to where the true half section line running east and west through section 13 (in which plaintiff and defendants live) is located with reference to their respective possession. Plaintiff in support of his case sought to prove by P. S. Quinn and J. W. Moles, two surveyors, who had run out the lines of section 13 owned by plaintiff and defendant and located the government half section corners dividing these lands, where the true corners of the half sections were located. Objection was made to this testimony by defendant’s counsel, because the witnesses had disclosed the fact, in their preliminary examination conducted by him as they were called to testify, that the survey of the land by them had not been made in the capacity of surveyors or deputy surveyors of Cooper county or by authority of the United States or by mutual consent or request of the parties litigant. The objection to the [415] testimony of each witness as he was offered was sustained by the court, with this remark: “The objection to the evidence of the witness, so far as it goes to testifying to corners or lines ascertained by his survey will be excluded.” The counsel for plaintiff then said: “I don’t offer a survey made by either Mr. Moles or Mr. Quinn or Mr. Wright. I simply offer this witness (referring to Mr. Moles) to prove the facts, namely, where the government corners are located,” whereupon the court said, “The witness may answer the question, but refrain from answering upon any knowledge he may have derived from his survey.” When told by the witness that his only knowledge of the location of the corner was from what his survey showed, the court then announced that the objection to his testimony would be sustained, to which ruling of the court plaintiff duly excepted. Plaintiff’s sole reliance being upon the testimony of the surveyors, Moles and Quinn, to establish the fact of his land boundaries, and their testimony having been excluded, he was compelled to take a nonsuit with leave to move to have same set aside. Whereupon judgment was rendered against plaintiff, and his motion to set aside the nonsuit and grant to him a new trial being overruled, he has prosecuted his appeal to this court, after the usual preliminaries. Respondent’s sole contention here, to maintain his judgment, as it was before the trial court, to exact its ruling, is, that the proffered testimony of plaintiff was made invalid by reason of the provisions of section 8312, Revised Statutes 1889, which read as follows: No survey or resurvey, hereafter made by any person, except that of the county surveyor or his deputy, shall be considered legal evidence in any court in this State, except such surveys as are made by the authority of the United States or by mutual consent of the [416] parties.” This we think an entire misconception of the meaning and purpose of the statutes. The section means nothing more than its plain terms read; and that is: That no survey or resurvey of land in this State shall be considered legal evidence in any of our courts, except made under the conditions and by the parties designated in the act. The section is in no sense a restriction upon the right of any class of witnesses to give testimony to any fact or facts, 'of which they are possessed, which might have a reasonable or natural tendency to show where an original line or corner had been located, that before its enactment would have been competent as evidence in a contest to establish a lost or disputed line or corner, but is rather to be considered as an enlargement of the range from which testimony may be gathered, an expansion of the source from which it might be obtained. The error into which respondent has fallen is in assuming that section 8312 was enacted as a disqualifying statute leveled against something as evidence, that before its passage, was legal and proper as evidence, and from that assumption, argues, that as unofficial surveys were never competent as evidence, the purpose of the section must have been more than a declaration against unofficial surveys as evidence, and that the section was intended to prohibit as evidence all information or knowledge that may have been derived by a survey made by one not authorized by statute to make a survey that is competent as evidence. The section is not a disqualifying statute in the sense that it is leveled against anything as testimony, or any persons as witnesses, that before its adoption could be used as such, but is the mere designation of an instrument, made under certain condition and by certain parties, as legal evidence in the courts of this State in contests like the present, that before its enactments [417] could not have been used, and prohibits nothing, as evidence that theretofore was proper. The reason for the denial or prohibition of surveys made by others than those designated in the act in controversy is most manifest. Likewise a very substantial reason immediately presents itself in favor of the propriety of permitting surveys as evidence when shown to have been made under the safeguards and surroundings that attend the making of the same by the parties designated in the act under consideration, but no good reason exists why any surveyor (official or unofficial) should, when he is brought into court and placed under the obligation of an oath, be denied the right to testify in reference to a survey made by himself, or to the correctness of any plat thereof which he may have made, leaving the question of its accuracy to the consideration of the jury, as are all questions of fact. The section was designed to name and designate what surveys should be considered as legal evidence in the courts of this state, but in no manner attempted to designate what surveyors are competent as witnesses or to what questions their testimony shall be limited. Those questions, as before the section in controversy was enacted, must be determined by the relation the witness bears to the parties, and the pertinency of the question propounded to the issue involved. For the refusal of the trial court to permit plaintiff’s witness to testify and thus forcing him to take a nonsuit, its judgment is reversed and the cause remanded to be tried in accordance with the views herein expressed. Brace, P. J., Marshall, J.,'concurs. Williams, J., not sitting.