Bonney v. McLeod

HAREIS, J., delivered the opinion of the court. The only assignment of error which we deem it necessary to notice in this case, is that relating to the confirmation and establishment of the line, indicated by the survey of Camp, appearing in the record. The object of the bill was to settle the dividing line between the complainant and defendant, the owners, respectively, of the west and east halves of section 12, township 9, range 4 west, in Yazoo county, Mississippi. The bill alleges, that about twenty years since, a lane dividing said section between the proprietors thereof, and for their convenience, was made, in which complainant, and those under whom defendant claims, have acquiesced as the boundary of their respective halves of said section. That complainant has, at great labor and expense, cut a ditch upon his side of said line, and claimed and held ¡iossession, and exercised ownership over the same, and the right to the common use of said lane, without dispute, until within the last two years before filing said bill, when said defendant procured a survey without notice to complainant, running a line different from that established and acquiesced in, and on each side of which said lane was opened by the respective owners under whom said defendant claims as aforesaid. . That to avoid difficulty, an agreement was entered into between the said complainant and defendant, to refer the matter in dispute to two persons, to be selected by them. That the selection was made, and the arbitrators entered on the discharge of their duty, [399] according to said written agreement; but abandoned the same, on account of the refusal of said defendant to abide their decision. The bill then states, that'defendant now claims to appropriate the whole of said lane and the fences on each side thereof to his own use, and also the right to fill up complainant’s ditch. The bill prays for an injunction, and for the establishment of said lane as the dividing line between them ; or that the said arbitrators may settle the line between them according to the agreement, filed as Exhibit A. The answer of defendant, McLeod, admits his claim to the east half of the section, as stated; but denies any knowledge that the lane was ever established or recognized as the dividing line between the owners of the east and west halves of said section, and calls for proof. The answer admits"the execution of agreement A., and the selection of arbitrators, and that they entered on the discharge of their duties under said agreement; but denies that they commenced or proceeded to ascertain said dividing line according to the terms of the agreement, or according to the proper magnetic variation of the compass. That they took an assumed variation of seven degrees and thirty minutes, instead of eight degrees and thirty-five minutes, which he insists is the true variation. The answer avers a willingness, on the part of defendant, to abide by said agreement, and the decision of the arbitrators selected to run said dividing line. Ewing and McKee, the arbitrators selected by the parties, filed their answer to the bill, admitting their action, as stated, and the refusal of defendant, McLeod, to abide their decision. And they decline all further connection with the matter,. The record next shows an order of survey made by the court, without any objection; notice by the sheriff to the parties of the time of the execution of said order of survey; and then a plat and certificate of survey by the county surveyor, reported to the court. Exceptions to the report, and its confirmation by the court. The case was then submitted on the pleadings and proofs, and a decree passed, establishing the said survey as the dividing line between the parties. And from this decree an appeal is prosecuted. On the final hearing it appeared in evidence, by the statement of the arbitrators who had been selected to run the dividing line [400] between the parties, that they were shown the tract of land by the parties, and by applying the compass to the marked and established township line, upon which the land in question lies, they ascertained the variation of the compass on that line to be seven and a half degrees east; and that defendant insisted that they should adopt eight degrees and thirty-five minutes east, instead of the variation indicated by the old line of survey. It further appears, from the plat and report of the county surveyor, that in making his survey he adopted an arbitrary variation of eight degrees and eighteen minutes east, instead of the variation •indicated by the marked and established line of boundary of said section: for neither in the report of the surveyor, nor in his deposition, is the testimony of the arbitrators (in their statement appended as Exhibit B. to the bill, and admitted by the answer) denied or questioned. It must be, therefore, taken as true in this investigation, that the old marked line of survey of said section indicates seven and a half degrees as the true variation of the original survey, instead of eight degrees and eighteen minutes. It follows inevitably from these facts, that the survey made by the county surveyor, and adopted by the court, was erroneous. In the absence of old and established lines of survey indicating the proper variation to be adopted, while it would be proper to resort to other-modes of ascertaining the true variation regulating such survey, to enable the officer to locate accurately the old lines of boundary, yet it was never held that an existing, known boundary line could be changed to suit the variations of the compass at different times, or the difference in variation of different compasses. Marked and known lines designating the boundaries of land, indicating the original survey, cannot be thus disregarded. If the original survey was made upon a wrong or assumed variation, or no variation at all, and its lines and boundaries are obvious, they are nevertheless the true boundaries of the patentee and those holding -under him; and the law will not submit such boundaries to-any other test, however scientific in the abstract. If, therefore, the known township lines constituting the boundary of the section in question on one side, indicated a variation different from that assumed by the county surveyor, it was his duty to have followed the directions of the known lines. For in no other [401] way could be have ascertained the true line of division which was sought- to be known by these parties. Any other rule would destroy all existing surveys and boundary lines, and establish in their stead others corresponding with the changes in magnetic variation from time to time. Let the decree be reversed, and cause remanded for further proceedings.