Hoffman v. Riehl

Richardson, Judge,

delivered the opinion of the court.

If the only description in the deed had been “the west half of the east half of the south-west quarter of section 14,” under some circumstances it would be just and proper to determine the rights of the parties by an equal division of the land between them; but the deed under which the plaintiff claims calls for specific boundaries, courses, distances and corners, which must not be disregarded if they are intelligible and furnish the necessary data for the true location of the land.

The only controversy between the parties arises out of the manner in running the division line between them, and any confusion that may exist in regard to the starting point of the *556 survey is entirely immaterial to the decision of this case, because, no matter where the surveyors begin, they all agree that in running the north line, going east, they reach a stake in the north-east corner of the tract, “ from which a blackjack, 12 inches in diamater, bears north 48 degrees east, distance 40 links.” This corner is on the line that separates the land of the parties, and, being fixed beyond all dispute, the only question to decide is, how the line shall be run from this established point. The language of the deed is “ thence south 42 chains to a stake on said line between said sections (14 and 23) to the beginning.” The survey begins at some point, no matter where, on a line which is well ascertained between sections 14 and 23, and to close the survey this line must be reached. Now it is evident that the line must not be run from the black-jack corner to the place of beginning, because that would be a great departure from the course indicated in the deed, and quite a difference in the distance called for; besides, the defendant does not insist on such a construction, and of course the plaintiff does not, for it would put him at once out of court. There is manifestly an omission, in the description, of the adverb “thence” after the word sections; and the call should read “ thence south 42 chains to a stake on said line between said sections ; and thence to the beginning;” and the plaintiff is bound to consent to the insertion of this word or admit that he is in possession of a large portion of the defendant’s land.

Inasmuch, then, as the starting point is well known, and the object to be reached is ascertained, and the course given, in our opinion the line should be run south to the section line, in obedience to the direction in the deed, making proper allowance for the variation of the magnetic needle from the true meridian. The length of this line called for in the deed is 42 chains, and the distance between the corner and the section line, on a due-south course, is 43 chains and 50 links, but the difference is trifling, and distance, being the most uncertain, must yield to the other controlling calls. The plaintiff, however, can not object to the discrepancy of dis *557 tance, because the line run according to his theory is 43 chains 60 links, and departs a degree and a half from a due south course.

The other judges concurring, the judgment will be reversed and the cause remanded, to be tried in conformity to this opinion.