Meeker v. Simmons

CHIPMAN, P. J.

Action in ejectment. The cause was tried by the court without a jury and defendants had judgment, from which plaintiff appeals on bill of exceptions.

The controversy arises out of conflicting claims to about an acre of land, being a narrow strip forty or fifty feet wide, extending along the east side of the land conveyed by plaintiff to defendant Emaline Simmons.

It was stipulated at the trial, “that the first call in defendants’ deed, to wit: ‘thence running along the center of the county road, north 30° 45' west 6.80 chains’ is conflicting in this, north 30° 45' west 6.80 chains, would carry the line 50 feet east of the center ’of the county road at the end of 6.80 chains, and the remaining portion of the line would be east of the proposed road; that to follow the call in the deed and go down the center of the county road 6.80 chains the remaining portion of the line would be the west line of the proposed road. To follow the line down the center of the county road the course would be, north 33° 45' west, and the land described in the complaint would belong to the plaintiff; but to follow the course N. 30° 45' west and not

go

down the center of the county road, the land described in the complaint would belong to the defendants.”

The deed was executed and delivered November 4, 1904, and the description of the land, so far as is necessary to be stated, is as follows: “Beginning at a stake which bears South 501/2° West of a stake situated under the center of the railroad bridge, said bridge being the crossing of the North Shore Railroad, and the county road leading from Occidental

[252]

to Camp Meeker, and 1.94 chains distant, running thence along the center of the county road, North 30° 45' West, 6.80 chains, thence leaving said road, along the center of proposed road, North 15° West 5.33 chains to a stake,” and, as claimed by plaintiff, following the center of the proposed road to the northeast corner of the tract and thence by courses and distances around an irregular piece of ground and back to the place of beginning, “containing twenty acres of land, exclusive of the proposed new road, all courses corrected on an accepted variation of 18° East.” It appeared that plaintiff proposed opening a road from a point on the county road to another point of the county road, thus avoiding a hill and also giving access to his land bordering on the proposed road, and, as testified by plaintiff, the land conveyed “was to be bounded on the east side by the new road that was already staked out at that time.” Plaintiff further testified: “The county road there ran a little to the west of her (defendant’s) house, and this new road ran on the east side of her house and was to take the place of the county road, the county road was to be abandoned. We proposed to run the line in the center of the new proposed road which was already partially opened up. . . . The county road was to be abandoned only where this new road took its place, that part of the county road mentioned in the deed for 6.80 chains was not to be abandoned, but just where the new one took its place, that is the reason why we called it a proposed road.” And plaintiff testified, that Mrs. Simmons agreed to give half of the proposed road. Plaintiff employed surveyor Symmonds to run out the lines to the tract of land plaintiff was about to sell to defendants. Mrs. Simmons was present when this survey was made. He testified that he started at a point in the center of the county road and the first call as appears in the deed “was north 30° 45' west 6.80 chains,” but he testified that “the actual survey was down about the middle of the county road leading from Occidental north. ’ ’ He further testified: “The next call was north 15° west 5.33 chains, which was in the center of the proposed road, running along the creek. The next call was north 32° 30' west 3.62 chains along the proposed road. The next call was north 9° 30' west 1.45 chains (the deed reads 1.47 chains), which was still