Moreland v. Page

Isbell, J.

This was an action of right brought to settle the north boundary line of the east half of the south-west, and west half of the south-east quarters of section four, township ninety, north of range three, west of the fifth P.M. situate in Delaware county. Defendant is the adjoining owner on the north. A strip of land about three chains in width,, claimed by both parties, constitutes the subject of the controversy. The dispute grows out of the fact of the original survey of a large part of the northern two ranges of sections-in this township, having been either defectively or fraudulently made. This survey was made in 1837, and in 1849, complaints having reached the commissioner of the general land office, that the marks and monuments called for in the original field notes of the survey of the north part of this-township, had not been found, and probably had never been made, and that the distances from the corners which existed to the north boundary, were not as great as represented in the plat and field notes of the original survey, said commissioner caused an accurate examination of the whole township, to be made by an experienced surveyor. This examination discovered that many of the sub-divisional corners could not be found, and that they had probably never been established, as the quantity of land in the north two ranges of sections, was less than represented by the original notes, and the topography, in some instances, was at variance with the calls; as, for example, corners which were represented, as in timber, were where there had never been any timber. By this examination, all the section corners on the lines bounding the north two ranges of sections, and that at the north-east of section seven, were found. Also, all the quarter section corners-on the west lines of the following sections, viz.: 6, 7, 8, and 9, and that on the south line of section 11. No other monuments or subdivisional marks were found,, and those situate on the south line of these two ranges were not accurate, as-called for in the field notes of the original survey. The sav *147 eral ascertained and unascertained corners will be readily-understood from tbe attached plat.

In April, 1852, said commissioner, having become satisfied from the examination, that the survey had been defectively made, though after the purchase by the parties to this suit, and after the sale of most of the land in this township by the United States, caused a re-survey of the whole township, under the instructions of the surveyor-general of Wisconsin and Iowa, by Edward James, jr., deputy, who had been detailed for that purpose.

These instructions bear date April 12, 1852, and so far as material are as follows: “ Commencing in the manner prescribed in the accompanying instructions ” (which instructions wele the general printed instructions of the surveyor-general of Wisconsin and Iowa, to his deputies in making government surveys of the public land, and the same under which the survey had been originally made), “you will proceed to retrace the lines of the existing survey from corner to corner, and wherever the same are found, and can be fully identified, as those established by the original surveyor, you are to allix thereto your own official marks of recognition, and from said corners you will run, mark, and re-establish the lines and corners for the residue of the township.”

• “In surveying between recognized corners at remote distances apart, you are to random from corner to corner, and correct back, distributing the excess or deficiency, as the case may be, equally, so that each section may receive its due proportion of either.”

The line between plaintiff and defendant, as ascertained by this mode of survey, falls south of that claimed by plaintiff, about two and one-half chains. It will be observed by a careful examination of the description of the found corners, as hereinbefore given, that the quarter section corner on the west line of section nine, and the section corner at the southeast of said section, are corners found and identified on the examination, and the same were recognized on the re-survey. The decision of the court below, was, in substance, that the dividing line between the parties should be fixed and estab *148 listed, by measuring north from these two ascertained corners, lines parallel with the east line of the township, from the first described corner eighty, and the last one hundred and twenty chains, and that a right line between the points attained by such measurement, constituted the true line between the parties. This mode of survey, finds the line claimed by plaintiff and appellee in this suit.

It is claimed by defendant; that the true mode of ascertaining the line in dispute, is by running right lines from, the starting points assumed by the court below, to the found corners at the north-west and north-east corners of section four, and also a right line from the found corner at the north-east corner of section seven to that of the north-east corner of ■section twelve; that the points of intersection of these lines, will establish the true corners of sections 4, 5, 8, and 9, and also, sections 8, 4, 9, and 10; that having thus ascertained the section corners, the quarter section corners on the east and west sides of section four, should be placed at those points respectively, which will give to the parts of the lines lying both north and south of these quarter section corners, the same proportion of length which was given to them by the original survey as returned; and that a line drawn between 'these quarter section corners, thus established, constitutes the true line in dispute. By this mode, a line is found something near a chain south of the one as established by the re-survey.

Both parties have introduced their patents in evidence, and both have relation to the original survey. Neither party claims any advantage, on account of priority of purchase. The title of neither to the land on his side of the true line,-is disputed. The sole question then is, what is the true line between the parties ? Did the court below determine the true line ? "We think not. Here is a large body of land, comprising nearly two ranges of sections, on the north part of the township, on which no subdivisional monuments can be found. Of this body of land in gross, there is less in quantity than is called for in the original survey. Yet we are, as between the parties here, to regard it *149 as a lost survey, and not as never having been made. It must be restored. But upon what principle the court should determine, that the plaintiff was entitled to carve out of this body of land, made up of numerous subdivisional tracts, the full quantity which his patent called for by actual measurement, and leave others, who had purchased other sub-divisional tracts of the same body, under the same conditions with himself, a deficiency, we are at a loss to determine. Had this body of land, on which there are no monuments found, exceeded, instead of falling short of, full measurement according to the original survey, the purchasers of the specific tracts included in this body, would have been sharers of the excess in due proportion, and the plaintiff, with others, to his proportion. On the other hand, he should share the deficiency. But it is said, that fractions in subdividing townships, all fall on the north and west sides of the townships. That is true in making an entirely new survey; but this survey is not an original one; it does exist, at least on paper. The purchases have all been made in relation to it. The purchaser of a fractional forty acre tract, located on the north or west side of the township, to the extent of the quantity designated in that fraction on the plat, and by the field notes of the original survey, purchased as definite and determined a quantity of land, having as fixed and determined relations to the whole tract, the survey of which is now lost, as did any one who purchased those several tracts.not designated as fractional. The person who might purchase a tract on the north side of the township, designated on the official plot of the original survey as containing thirty-nine acres, had as perfect a vested right to receive thirty-nine full acres, as he who purchased a quarter section in any other part of this body, had to the hundred and sixty acres called for by his patent. If this is true, it follows that the line established by the court below, is not the true line ; for it gives full measure from south to north to the plaintiff, while, by so doing, it leaves to the defendant less length of line' from south to north, by two and one-half chains, than he would have had, after sharing his proportion of the general defi *150 ciency. Neither do we think the line contended for by the defendant, the true line. The fallacy involved in the reasoning by which it is sought to be supported, we think, consists in this: First, it assumes that this survey was theoretically correct. Secondly, that certain' individual monuments are absolutely correct and unimpeachable, namely, those at the north-east and the north-west of section four; that at the south-east of section nine; the quarter corner on the west line of section nine ; that at the north-east of section seven; and that at the north-east of section twelve ; while it leaves out of sight other monuments having an influence upon the conclusion to be arrived at, which are equally correct and unimpeachable. And, in addition to this, it ignores the practical mode of making these surveys by the government. It is true that defendant claims, that the general printed instructions under which the township was originally surveyed, are not to be considered; because, he says, his purchase is in relation to the plat and field notes, and not the instructions under which the survey was made. We cannot entertain this view; for in the first place, it is equally true of the purchase of any other subdivision within this area, the subdividing monuments of which are not found; and secondly, the provisions of the law regulating the manner the public lands shall be surveyed, showing the relations which one tract shall bear to another, and how the several tracts shall be designated, as that it shall be laid off into townships by certain lines, subdivided into sections, those sections into quarter sections by a uniform mode, those townships and sections numbered in a particular manner, &c., with the general instructions from the proper department, pointing out the practiced manner in which these townships and their subdivisions'Shall be surveyed ; the field, notes and plats officially made, certified and deposited in the proper repository; all necessarily enter into the consideration, in attempting to restore a lost survey made under them. They together, to speak figuratively, constitute the domesday book of our western states. The dominion of every landholder has relation to them, and without here deciding that this court *151 will take judicial notice of these general instructions, for it is unnecessary, they having been introduced in evidence, yet we liave no hesitation in saying, that they are proper here to be considered. We say, then, that the defendant in his reasoning, leaves out of sight monuments that have an influence in the conclusion to be arrived at.

Without citing these general instructions at length, we think this will readily be appreciable, when we take into consideration the fact, that the interior section lines, east and west, through the township, are not right lines drawn across the whole township, but any given one of these lines, is made up of a series of closing section lines, each to some extent independent of the others. These several section lines may, by a remote possibility, constitute a right 'line across the township. If practical surveying eould be made as perfect as theoretical, they might form a straight line, but the difference between theory and practice is such, that the fact is, they seldom if ever do; while, ontbe contrary, each line across the township, from east to west, dividing sections, generally has as many distinct courses as there are sections lying on either side of it. Yet, nevertheless, on the principle of subdividing townships adopted hy the government, any one of “■■these lines east and west through the township, so made up, whether straight or crooked, constitutes, in effect, the lase line for the survey of all the land lying north of it in the same township; or, to speak more accurately, each separate south section line, is in fact, the base line for the survey of the section lying north of it. Now, the line on the south side of these two tier of sections is found. Its section corners are all marked. It is not, in fact, a straight line, but that part of.it which bounds any one of these sections, on the south, is, in fact, the base line for the survey of the land lying north of it, and must necessarily influence the survey of all the land lying north of it to the township line. But the line from the north-east corner of section seven to that of section twelve, the intersections of which defendant claims, marks the true southern corners of section four, is a straight line. While that on the south boundary of the sections *152 which this straight line marks on the north, is not straight,, jet the south line is .the base from which the other, if ever made, must have been made. The one maintains uniformly the same course for five miles, while the ojher, which should, be the base, and this a parallel, so far as practice may coincide with theory, does not maintain the same course through, any two consecutive miles. The monuments all along this line, and all the other monuments all around this body of land, the subdivisional monuments of which are not found,, are as absolute, unimpeachable verities, as the two adopted by the court below, or the six claimed by the defendant. The several tracts of land on the plat, in relation to which, the several purchases were made, are each as fixed, and have each as determined relations to each other, and to each of these monuments, as they do to any one of those claimed by defendant. The unknown corners must be found by the corroborative testimony of all, with as little departure as. may be, from the system adopted on the original survey, without giving any preponderance to the testimony of any one monument above another. In doing this, courses and distances, which are the elements of superficial measure, must yield to the facts, namely, the established monuments. In other words, to use a homely adage, the several garments-must be cut according to the cloth.

We do, therefore, adopt the mode of survey in restoring these corners, laid down by the surveyor-general of Wisconsin and Iowa, in his instructions of April 12th, 1852, to Edwin James, Jr., under whom the resurvey was made,, which instructions have been herein recited. We do not, however, adopt this mode of survey, on account of any authority which any of the departments of the general government has to interpose after the sale of these lands by it, to settle the boundaries between the parties; but for the sole reason, that we deem the principles contained in the instructions, the true principles recognized by the law in like cases. We have carefully examined the authorities cited by counsel, and are satisfied that they contain nothing'that conflicts, with the principles in these instructions. We understand. *153 these principles to be, first, the familiar, though cardinal one, that course and distance must yield to fixed monuments.. This principle is no more familiar in law, than in practical surveying. The surveyor employed to subdivide a township, commences to practice upon it the second line he runs,, and continues to do so every second or closing section line-through the whole township. To illustrate:- he commences one mile west of the south-east corner of the township, having adjusted his compass to correspond with the last line j, he runs north a mile and east a mile, but he fails, unless by a very rare occurrence, of exactly striking the mound established one mile north of the south-east corner of the township, but he only makes the line accommodate itself to this monument in length and bearing, and continues to do so at the closing of each section throughout the township.

. The second principle,- we understand to be, that all ascertained surrounding monuments shall have their due weight, in determining the locality of the unascertained, under the system by which the survey was originally made. Thirdly, that where on a line of the same survey, between remote-corners, the whole length of which line is found to be variant from the length called for, in re-establishing lost intermediate monuments, as marking subdivisional tracts, we are not permitted to presume merely, that a variance arose from the defective survey of any part; but we must conclude, in the absence of circumstances showing the contrary, that it arose from the imperfect measurement of the whole line, and distribute such variance between the several subdivisions of such line, in proportion to their respective lengths.

It has been urged by plaintiff, that this is not a lost survey, but that a survey has never been made. To adopt this view, would be to defeat his entire title. His patent has relation to a survey which, if it never existed, leaves him without, description in his grant. "We cannot conclude that there never has been a survey, though it should have been merely imaginary, so far as the interior lines of these two ranges of' sections are concerned. Eor, although imaginary, it has been platted and numbered, and incorporated into the sev *154 eral grants. The purchasers of all tjie subdivisions numbered on that plat, have purchased with relation, not only to the monuments, but to the township, range, sections and subdivisions of sections, as shoion by the plat. And now, as between these purchasers, it would be an enormity to entirely disregard it.

The judgment of the District Court is reversed, and the District Court is directed to proceed to enter judgment in accordance with this opinion.-