Miller v. Cuelho

Beatty, C. J. The plaintiff in this action prosecutes separate appeals, — No. 13581 from the judgment, and No. 13633 from an order overruling his motion for a new trial. No error is assigned upon the first appeal but in support of his appeal from the order denying a new trial, plaintiff contends that the verdict is contrary to the evidence.

■ The action is for the recovery of land, and the plaintiff is undoubtedly the owner of the legal subdivisions described in his complaint; the only question in the case being whether a certain spring in the possession of the defendant is situated within the limits of such subdivisions as originally surveyed by the government. The defendant claims that the spring is upon an adjoining subdivision, the government title to which is in him.

It will be readily understood from this statement that the dispute arises out of the fact that the stakes and other monuments, by which the section and quarter-sec[550]tion comers of the official survey were originally marked, have become so far obliterated as to require restoration by means of new surveys. As frequently happens in such cases, the different surveyors who have undertaken this task have arrived at widely variant results,—the surveyor for plaintiff locating his lines so as to include the spring, and those employed by defendant bringing it within his lines.

We are asked to decide, as matter of law, that the verdict for defendant is wholly unsupported by the evidence, because his surveyor did not use a proper method in his attempt to restore the lost corners of the section in which the lands of both parties are included. It seems that the exterior lines of the township were surveyed by a deputy surveyor named Freeman in 1856, who at the same time surveyed some of its interior or section lines. It is conceded on all sides that Freeman was very careful and accurate in his work, both in measuring his lines and marking his corners; but the deputy who completed the survey of the section lines of this township in 1871 is said — by some of the witnesses, at least,—to have been careless and inaccurate, and it does not appear that any of the stakes or monuments by which he marked his corners are now discoverable, although many of Freeman’s stakes and other marks are still standing and easily found.

The particular section (section 8) in which the premises in controversy are included was partly surveyed by Freeman; that is, he located and marked the southwest corner of the section, and set a quarter-post on its south line. Afterwards, when Read completed the survey of the township, he closed his survey of section 8 on these corners, and laid it down on the township plat as a regular section, one mile square and containing 640 acres. The plat made and returned by him, and approved by the surveyor-general, does not indicate the position of the spring, and his field-notes contain no reference to it.