Brew v. Nugent

Maeshall, J. Tbe following propositions are affirmed and submitted by appellant’s counsel as grounds for a reversal: (1) Tbe verdict and finding tbat tbe fence as constructed for tbe north boundary of lots 12 and 17 some thirty or forty years before tbe controversy arose was properly placed is not supported by any credible evidence. (2) Tbe court in instructing' tbe jury gave prejudicial significance, as evidence, to tbe location and maintenance of tbe fence referred to. We will consider such propositions briefly. It is the settled law tbat in controversies as to tbe proper locations of corners or boundaries of lots or blocks in platted lands tbe original location of monuments must prevail, regardless of whether tbe same coincide with the courses and distances laid down on tbe plat, and tbat in determining such locations if such monuments have disappeared they must be established by tbe best evidence tbe nature of tbe situation is susceptible of. So, in such circumstances, where careful measurements by courses and distances would presently locate tbe disputed points is not controlling. It is evidentiary only, and of controlling or little or no weight according to circumstances. Nys v. Biemeret, 44 Wis. 104; Lampe v. Kennedy, 49 Wis. 601, 6 N. W. 311; Racine v. J. I. Case P. Co. 56 Wis. 539, 14 N. W. 599; Racine v. Emerson, 85 Wis. 80, 55 N. W. 177; Madison v. Mayers, 97 Wis. 399, 73 N. W. 43; Galesville v. Parker, 107 Wis. 363, 83 N. W. 646; Smith v. Beloit, 122 Wis. 396, 100 N. W. 877; Pereles v. [339] Gross, 126 Wis. 122, 105 N. W. 217. Failure to fully appreciate the effect of sucb decisions might well lead one who relies on mere measurements from monuments supposed to have heen set in making the original survey to mark comers of lots or blocks other than the ones in question, to lose patience, as counsel for appellant seems to have done, because of evidentiary effect inconsistent therewith being given to the location of ancient fences and long-continued occupation with reference thereto and other circumstances. The original markings of the block in question having been removed, as they unquestionably were, many years before the controversy arose, the evidence as to the construction of the fence designed to be on the north line of lots 12 and 17 at a time so near that of the original survey as to render it quite probable that they were then in place, or their location readily ascertainable by a person of ordinary intelligence and experience, and the evidence of acquiescence in the location of such fence for some thirty or forty years, was competent, and at least with other evidence offered and received, particularly evidence that a stone existed at the easterly end of such fence some years after it was constructed, which people regarded as a landmark, was sufficient to warrant the conclusion that such old fence was properly placed and the disputed boundary fifty feet south of it, notwithstanding the very positive evidence of the surveyor, who, by his measurements from monuments located some distance from the vicinity of the lost corner, supposed by him to he monuments set in making the original survey, supported appellant’s contention. In such a case such circumstantial evidence may have so much greater probative force than mere measurements by courses and distances as to prevail over the latter as matter of law, as indicated in some of the cases cited. What has been said perhaps sufficiently answers the contention of counsel that the court gave unwarranted significance to the circumstances referred to. The jury were [340] merely informed, as tbe fact was, and is not disputed by counsel, tbat, if tbe ancient fence wben built was correctly placed witb reference to tbe original monuments marking tbe north boundary of tbe block in question, tben tbe line and corner so indicated should prevail over tbe one indicated by tbe surveyor by measurements from distant monuments supposed to have been placed to mark tbe corners of other blocks. Tbat is, under tbe circumstances, primary and controlling evidentiary effect was directed to be given to tbe old fence line, 'in ease tbe jury became satisfied by a preponderance of tbe evidence tbat wben tbe fence was constructed it accorded witb tbe original monuments set on such line; otherwise primary and controlling effect was directed to be given to tbe measurements made by tbe surveyor, tbe attention of tbe jury being called to tbe undisputed fact tbat tbe fence was constructed so soon after tbe land was platted as to render it reasonable to suppose tbat some of tbe monuments indicating the true line were still in place, but calling attention to tbe circumstance tbat tbe person who built tbe fence merely testified tbat be ascertained tbe line as near as be could, not being interrogated on either side as to what steps be took in tbat regard. We are unable to discover tbat tbe court gave tbe undue significance to tbe old fence line claimed by counsel. It was fairly left to tbe jury to determine from tbe whole evidence whether tbe fence was built so as to accord witb tbe original survey, witb instructions tbat, if they determined it was, from a preponderance of tbe evidence, tbe finding would be controlling, since tbe disputed strip was by tbe uncontro-verted evidence on defendant’s side of a line located at tbe proper distance from such old fence line. Tbat was certainly correct, and tbe fact tbat the jury were, witb considerable particularity, instructed in tbat regard, so as to leave no room for them to proceed on any false theory, is commendable rather than subject to criticism. By the Court. — Tbe judgment is affirmed.