Spiers v. Spiers

SHAW, J.

The defendants appeal from the judgment and from an order denying their motion for a new trial.

The complaint stated a cause of action to quiet title to a parcel of land described as lot 2, of section 5, township 11 north, range 7 west, in Lake County. The defendants are the owners of lot 1, adjoining lot 2 on the east. The only point in dispute is the location of the division line between the two parcels. The position of this line is controlled by the location of the northeast corner of section 5, which is also the northeast corner of lot 1. It does not appear that the corner at the intersection of the division line of the lots with the north line of section 5 was fixed and monumented by the government survey. The quarter-section corner, being the northwest corner of lot 2, was fixed, and the monument still remains. The position of the division line is to be fixed by ascertaining the location of the northeast corner of the section, and dividing the distance between that and the quarter-section corner. The parties differ solely with respect to the location of the said northeast corner of the section, it being also the northwest corner of section 4.

The plaintiff derives title to lot No. 2 from the United States, under a recent entry as a homestead claim. The defendants deraign title from the United States to lot 1, through Charles C. Copsey, who entered upon and obtained title thereto about the year 1877. Near the division line are situáted certain .mineral springs known as Copsey’s Springs. Aside from these springs the land is of little value, and the

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controversy arises from the claim of the plaintiff that the easterly line of lot 2 is only eight feet west of the main spring of said Copsey’s Springs, and that several of the springs are included in lot 2; whereas the contention of the defendants is that said line is some two hundred feet westerly of said springs.

The court found that the monument set for the northeast corner of section 5 had been obliterated, so that its location could not be ascertained, and that the location thereof must be determined by what is known as the proportional method. The surveyors of the plaintiff testified that they found the corner monument at the northwest corner of lot 2, being the quarter-section corner on the north side of section 5, and then proceeded easterly on the section lines of sections 5 and 4, and were unable to discover or locate any government monuments of the section or quarter-section comers, until they reached the northeast corner of section 4; that thereupon they concluded that the common corner of sections 4 and 5 was to be treated as a “lost corner” and its location fixed by the proportional method. Accordingly they divided the distance between the known monuments into six equal parts, and located the section comer by measuring off four of these parts to the east and two to the west, between the section corner and the quarter-section corner of section 5. The court found in accordance with this survey and gave judgment accordingly. The effect was to fix the division line as above stated, eight feet west of the main Copsey Spring.