Coulter v. Gudehus

WHITING, J.

Plaintiff and defendant are, respectively, the owners of the N. W. 1-4 of section 13 and the S. W. 1-4 of section 12 of a certain township situate in Brookings county, S. D. Plaintiff brought this action to determine the ownership of a triangular piece of land which forms a part of the half section owned by these parties. Plaintiff claims ownership in this tract by virtue of 20 years’ continuous possession thereof. He also claims ownership by virtue of patent from the United States government. Outside of the question of ownership through 20 years’ possession, the ownership of this tract of land depends entirely upon the true location of the quarter corner common to these two quarters. The case was tried as a law case. The jury returned a general verdict for defendant. The court entered judgment in favor of defendant. Motion for new trial was denied, and plaintiff has appealed from such judgment and order.

The record discloses numerous assignments of error based upon the rulings of the court receiving and rejecting evidence. We have carefully examined this record, and do not believe there is any reversible error in such rulings. Appellant has specified numerous particulars wherein it is claimed that the evidence failed to sustain the verdict. After a full consideration of the evidence in connection with the instructions given by the court, we are of the opinion that, under such instructions, the evidence supported the verdict. The only question left for our consideration is whether or not the court erred in the giving of one certain instruction upon request of respondent, and in refusing to give two instructions requested by appellant.. In order to properly pass upon such instructions, it is necessary to call attention, in a general way, to what the evidence showed. It appears that this part of the state was settled about the year 1880; that from the time of early settlement on for a number of years the section road between sections 12 and 13 ran close to the point claimed by appellant as the quarter corner; that at the point claimed by appellant there was a mound which several witnesses claimed to be the original government mound marking the disputed corner; that several years, ago such mound was by the township supervisors recognized as marking such corner and a stone was placed there *628 on; that certain fences and improvements had been made which recognized the corner as claimed by appellant. There was considerable other evidence tending to support appellant’s claim, among which was the testimony of a surveyor,, one Hegeman, who had made an examination of the said mound and its surroundings, and had questioned some of the old settlers. On the other hand, there was evidence tending to show that the mound claimed by appellant was not the original government mound; that such original government mound had become lost; that one Wescott, a surveyor, treating this corner as a lost corner, had, in accordance wth the laws of this state and the rules laid down 'by the federal government, located 'said corner at the point claimed by respondent. For the purposes of this appeal it must be conceded that W'escot: properly located the corner, if the corner marked by the government suryeyor had become lost. The point located by Wescott is some ioo feet south and 30 feet- east o-f the point claimed by appellant.

The court gave the following instructions requested by appellant :

“Instruction 1. You are instructed that it is your duty to as-certan if possible from the evidence 'before you, the corner as indicated by the government monuments and mounds established by the government surveyor, if any, and if you find 'from the evidence that the quarter section corner contended for by the plaintiff, as being located about 30 feet west and 100 feet north- of a certain rock, set by one Wescott, a surveyor, is the old government corner as located by the government surveyor, you will find-for the plaintiff on all issues.

“Instruction 2. You -are instructed that, if you find from the evidence the actual location of the corner as located by the government surveyor, this location must prevail and control, although it may not correspond with the calls .in the field notes.

“Instruction 3. You are instructed that upon the issues of the location of .a government corner or line you may consider the -evidence of witnesses who claim to have knowledge of -the original mounds made by the government surveyor, as well as all other evidence, such as the location of the highway, the construction of fences, ¡the location of trees, ditches, -or furrows -which may have *629 been in existence for a long period of time, as well as the surveys that have been made.”

■ The court refused the followng instruction requested by appellant: “Instruction 4. You are instructed that, if you find from the preponderance of the evidence where the original government monument and mounds were located, it will 'be your duty to establish the boundary accordingly, in preference to ascertaining the boundary -line by courses, distances, and calls of the government surveyor’s report.”

The court gave the following instruction asked for by respondent: “Instruction 1. You are instructed that, while unquestioned government monuments will control over courses, and distances, yet you are further instructed that this -does not apply where the evidences of an alleged government monument are doubtful or uncertain, and the rule is that monuments will control courses and distances only in case that such boundaries are fixed and known, and unquestioned monuments exist,' and that where the boundary is not fixed and known, and the location of the monuments themselves is uncertain or left in doubt by the evidence, then courses and distances will be considered in fixing the boundaries, and the government field notes will control in deter-mning the location of such uncertain, doubtful, or lost corner." The original record shows this instruction duly excepted to.

The court of its own motion gave the following instruction: “A lost corner is one whose position cannot be determined 'beyond a reasonable doubt, either from the original marks or reliable external evidence. You will notice that a corner may be obliterated, and not yet lost. If its location has .'been preserved, beyond all questions, by acts of landowners and by the memory of those who know and recollect the true situs of the original monument which marked it, then it is not lost, though obliterated. If, therefore, you find that the corner in question at the time Surveyor Wescott made his survey was an obliterated corner, one where no visible evidence remained of the work of the original surveyor in establishing it, but also find that its locaton had been preserved beyond all question by acts of landowners and by the memory of those who know and recollect the true situs of the original monument, then it was not a lost corner. If, however, at the time that Survej-or Wescott made his survey, the original mound, stake, *630 and pits marking the corner , in question were obliterated, and had disappeared to such an extent that they could not be identified, and position of the corner once marked by them could not be determined beyond reasonable' doubt, either by 'such original marks or reliable external evidence, then the corner was a lost corner. The'plaintiff claims that'the'corner in question was never' obliterated or lost, and that a certain mound is the original mound, and that near the same are still old and original pits, and that such mound and pits originally marked and still mark the corner established by the United States surveyor. Of course, if you find that siicli is the case, the corner was' not a lost corner when the surveyor, Wescott, made his survey, nor is it now, nor has it ever been. The defendant, however, claims that the original mound,' pits, and stake were completely obliterated over 20 years ago, and that the corner was at the time Surveyor Wescott made his survey a lost corñer. The burden is on the plaintiff to show to your ‘ sátisf action’ by a preponderance of the evidence that he is entitled, under the instructions given you, to a verdict in his favor.' If he has sustained that burden, your verdict will be in his favor upon all the issues. If he has not sustained that burden, then yoiir verdict will not be in favor of the plaintiff, but will be in favor of the 'defendant upon all the issues.” To the refusal of the court to give the instruction he asked for, and to the giving of the instruction asked for by respondent, appellant excepted.

[1] Respondent contends that the instruction given at his request is supported by the words of this court, and by the statutes of this state. This court in the case of Hanson v. Township of Red Rock, 4 S. D. 358, 57 N. W. 11 , said: “The’ rule that fixed monuments will control courses and distances only prevails when the boundaries are fixed and known, and unquestioned monuments exist; and where the boundary is not fixed and known, and the location of the monuments themselves is uncertain, or left in doubt by the evidence, then courses and distances will be considered in fixing the boundaries.”

Sections 923 and 926 of the Political Code of this state read: “.Sec. 293. The resurvey and subdivision of lands by all surveyors shall be according to the laws of the United States and the instructions issued by the officers thereof in charge of the public land surveys, in all respects. * * *

*631 “Sec. 926. In retracing lines or making the survey- he shall take care to observe and follo-w the boundaries and monuments as run and marked by the original survey, but shall not give undue weight to partial and doubtful evidences or appearances of monuments, the recognition of which shall require the presumption of marked errors in the original survey, and he shall note an exact description of such apparent monuments.”

Under the instructions -to surveyors issued by the United States government, as proved upon -the trial herein, “a lost corner is one whose position cannot be determined 'beyond reasonable doubt, either from the original marks or reliable external evidence.” It must be borne in mind in this case that .appellant.wa$ contending, and his evidence tended to show, that the corner was. not only not” lost, but not even entirely obliterated. If the jury should believe his witnesses, and, believing same, should find that the mound testified to by them was the original government mound, then its location was fixed “beyond a reasonable doubt” and “beyond all question,” as stated in the instruction given by the court on .its own motion. A careful reading of the court’s own instructions shows .that under such instructions the jury might find from a preponderance of the evidence that' the mound claimed by appellant was the original government mound, and, if they so found, that then their verdict would have been for appellant because the location of such mound1 was absolutely undisputed. To this instruction appellant did not except, and it became the law of the case. But the instruction excepted to laid down a different rule. Under 'such instruction, it was necessary that the mound claimed -by appellant as the government mound should be “unquestioned” or unchallenged before such mound - would control over courses' and distances. Under -such instruction, the jurv, before it could render verdict for appellant, must have found —not that the identity of this mound as the government mound was proven -to its satisfaction by a fair preponderance of the evidence, or even beyond a reasonable doubt, but that its being such, government mound was not even questioned by any evidence of the case. It will be noted that, under the instructions 'of the federal government, it is the “position” of the corner that must be established beyond a reasonable doubt by the surveyor. This is exactly in line with the instruction given by the court of its own *632 motion. There is absolutely nothing in the above sections of our statute that will support an instruction such as the one- complained of. It will be seen that this instruction follows closely the words of this court in the Hjanson Case, except that there is added, to what the court said, the clause, “and the government field notes will control in determining the location of such uncertain, doubtful, or lost corner.”

[2] We think the last part of what was said in the Hanson 'Case lays down the correct rule of law and a rule sustained by numerous decisions not only in other jurisdictions but in our own, to-wit, “where the boundary is not fixed and known, and- the location of the monuments themselves is uncertain, or left in doubt by the evidence, the courses and distances will be considered in fixing the boundaries.” That “unquestioned government monuments will control over courses and distances” is supported by all authorities, and this is the extent to which the auhorities cited in the ITanson Case go. As soon as a question is raised as to whether a certain known mound is a government mound, not only all the surrounding visible evidences, such as improvements, may be considered in determining the existence of a government mound, ’but also- the government field notes, the calls, the courses, and distances therein noted, in fact, each and everything that may fairly tend to aid the jury in determining whether the original mound is still in existence. Then, weighing all such competent evidence, the jury should determine, from a fair preponderance thereof, whether or not the mound contended for is- the government mound, and, if the jury finds that it is, such finding controls.. Randall v. Burke Twp., 4 S. D. 337, 57 N. W. 4 ; Arneson v. Spawn, 2 S. D. 269, 49 N. W. 1066 , 39 Am. St. Rep. 783 ; Dowdle v. Cornue, 9 S. D. 126, 68 N. W. 194 ; Tyler v. Haggart, 19 S. D. 167, 102 N. W. 682 ; Unvelmann v. Shelton, 19 S. D. 389, 103 N. W. 646 . See note 129 Am. St. Rep: 999.

[3] A reading of all the above decisions of this court will show that the location of a disputed corner is an open question to be determined from all the evidence, and, when determined, it controls. There is no hint that from tlie mere fact that a certain comer is “'questioned” it becomes an “uncertain, doubtful or lost corner,” and that the “government field notes will control in determining the location of” it. We approve of the following rule *633 laid down in Knoll v. Randolph, 3 Neb. (Unof.) 603 , 94 N. W. 964 : “The rule is that, where the government corner cannot be located by clear and satisfactory evidence, the field notes of the government- survey are to be taken as prima facie evidence of the location of such corner.” It follows that the converse is true— where the location of a government corner is established by clear and satisfactory evidence, such location must control over the field notes or 'over any question of where the corner should have been located by the surveyors. The instruction complained of was clearly incorrect, and it was prejudicial in view of the evidence.

[4] There -is another instruction refused by the court of which refusal appellant complains, and, inasmuch as the same instruction might be asked for upon a new trial,. we will briefly refer thereto. The instruction asked for was as follows: “Instruction 5. You are instructed that if you find from the evidence that the plaintiff in this action has for a -period of more than 20 years held in possession the land in controversy under claim and color of title, and that the plaintiff has during all of that time usually cultivated and used the said land, with intent to claim title to the same, it will be your duty to find as against the defendant and in favor of the plaintiff upon all -the issues.” The appellant’s “color of title” extended only to the land described in his patent. To any land outside of the N. W. J4 of section 13 he could have, under his patent, no color of title, and to all land* within such description he has unquestioned title. It follows that the refusal to give such instruction could in no manner harm appellant. One may, under a deed or other instrument, wrongfully “claim” .title to land not .described in the deed, and such claim may, under some circumstances, ripen into -title; but it is absolutely impossible to stretch or expand a deed so as to make it “color of” title to any lands not described therein. If the land in dispute was not, in fact, a part of the. N. W. of 13, appellant never had “color of” title thereto.

The judgment and order appealed from are reversed.

HANEY, J., not sitting.