Woods v. West , 37 Neb. 400 ( 1893 )

Maxwell, Ch. J.

' This is an action of ejectment brought by the defendant in error against the plaintiff in error to recover the. possession of about ten*acres of land. There is an evident mistake in the description in the petition, and on the trial the parties stipulated as follows:

“It is hereby stipulated by and between the parties plaintiff and defendant in this action that the title to the southeast quarter of section 8, town 1, range 21, is in the plaintiff Daniel P. West, and that the north half of the northeast quarter of section 17, town 1, range 21, is in the defendant Mary C. Woods. That if the jury find the original government corner to be at the corner known as ‘The Phoebus Corner/ that they shall find for the plaintiff; if they find that the corner is at or near the comer known as ‘ The Hasty Comer or Worthington Corner/ they shall then find for the defendant; and that if they find for the plaintiff, the amount of the damages shall be one dollar.”

The right of the defendant in error to the land in question rests upon the accuracy of a survey made by one Phoebus, and of the plaintiff in error on the surveys of Hasty and Worthington. Phoebus, on cross-examination, testifies as follows:

Q. You say you surveyed to this corner three times only?

A. Yes, sir.

Q. What were you surveying the first time.

A. Section 4.

Q,. You run a line from the southwest corner of section 4 to this corner in dispute at that time, did you ?

A. Yes, sir.

Q. Survey any part of section 8 or 9 at that time?

A. Not until after I was done with section 4.

Q. For what purpose did you run the line between sections 8 and 9 to the corner in dispute? .

A. At the corner of 4, 5, 8, and 9 there were two corners. I run a mile north and a mile south to determine which was the correct córner.

Q. Did you lócate the corner at tl^t time — at. the corner of 4, 5, 8, and 9?

A. I did not.

Q. Did you locate one of these corners as the correct corner ?

A. Yes, sir; I took the south corner as being the correct corner.

Q. How far from this corner of 4, 5, 8, and 9 is this-south corner of 4, 5, 8, and 9 to the corner in dispute, the one you recognized as the government corner?

A. I haven’t the first measurement, but I afterwardsmeasured it on the survey of section 9.

Q. What was the distance at that time, if you recollect?

A. Eighty-one chains and thirty-one links.

Q,. How far was the corner you recognized to 4, 5, 8,. and 9 south of the corner marked there?

A. About four chains.

Q,. You had started at the north one of these two corners and run south the distance that you made from the south corner to the corner of 16, 17, 8, and 9, you would have come nearer the corner you recognized there or the corner known as “The Hasty Corner”?

A. I measured in both directions from the corner of 4,. 5, 8, and 9 — both north and south.

Q,. I will ask the question in a different form. Is not the distance between the two corners at the corner of 4, 5, 8, and 9 north and south about the same as the distance between the corner you recognized to 16,17, 8, and 9 and the Hasty corner?

A. It is not quite so much.

Q. About how much does it lack of being the same?

A. I think about a chain less,

Q,. How much?

A. About a chain.

Q. The second time you were there, what were you surveying ?

A. Section 9. >

Q. When was that?

A. 1887.

Q,. When did you survey section 8 or the southeast quarter of section 8 ?

A. 1888.

Q. Where did you begin at the time you surveyed that?

A. At the southeast corner.

Q. Then where did you run ?

A. I ran west.

Q. How far ?

A. A mile.

Q. Did you run directly a mile ?

A. I closed on the quarter section corner and then ran west another half mile.

Q. Did you run on the variations given in the government field notes ?

A. I did not; I ran a straight line from corner to corner.

Q,. Then where did you run from the quarter corner between 8 and 17?

A. I ran west.

Q. How far — to what point?

A. To the section corner.

Q. Then you run north to the first quarter corner ?

■ A. Yes, sir; between 7 and 8.

Q. Then east?

A. East across section 8.

Q,. Did you close there?

A. Yes, sir.

Q. Then you closed at the quarter corner between 8 and 9?

A. Yes, sir.

Q,. Then where did you commence ?

A. I began at the quarter section corner between 8 and 17 and ran north across the section.

Q. Is that all the survey you made at that time of the lines you run ?

A. Yes, sir; excepting to locate these three corners; there are three corners set for the corner of 8, 9, 16, and 17. I measured between the corners.

Q. You measured between these corners?

A. Yes, sir.

Q. Then you didn’t at that time run from the quarter corner between 8 and 9 to this corner in dispute?

A. No.

Q,. What part of section 8 were you surveying at that time?

A. I set the corner for the center of 8. The southeast corner was what was required.

Q,. Did you attempt to found any corners there at the corner of 16, 17, 8, and 9?

A. No, sir; I found three marks and I thought I hadn’t better locate any more.

Q. Which one did you recognize?

A. The south one.

Q. You didn’t attempt to locate a corner there, did you ?

A. I did not.

Q,. Did you run south at that time from the corner in dispute a mile?

A. I did not.

Q,. Were you ever at or did you ever attempt to find the corner of sections 17, 16, 20, and 21?

A. No, sir.

Mr. Worthington testifies as follows:

Well I commenced at the state line on the south side of the township at the southwest corner of section 33 and chained north clear across the township, the chaining — our chaining didn’t agree exactly with the government field notes, although it was very close until we got up there to the southwest corner of section 16.

Q,. How far is that south of the disputed corner?

A. One mile. From there I ran a straight line two miles north and struck the section corner.

Q,. Well, what did you do then?

A. Well, I found that there were two rods over the two miles in the two sections.. Then I commenced at the township line on the east side and ran west across the township; our chainings did not agree with the government field notes. I ran to the southwest corner of section 10 and then I ran a straight line two miles west through to the southwest corner of section 8. These two miles overrun six rods. I didn’t chain across the township then. I went back there and divided up the distance between the southwest corner of 10 and the southwest corner of 8, and the southwest corner of 16 and 4, and put a stone in there. •

Q. You may state whether you found any corner one mile south of this disputed corner.

A. Well, I could not say that it was a government corner; I found a stone set in the gound.

Q,. As compared with the government field notes in distance from the Kansas line, how was it set?

A. Well, it was very close.

Q,. The first mile you run from the Kansas line, how much was that?

A. I don’t think I found a stone at the first mile.

Q. How was it with the second section ?

A. The second section, I found a stone there, but I didn’t put down the distance.

Q. Had you the field notes with you at the time you made this survey?

A. I had copies.

Q,. State just how you located the corner in ‘dispute.

A. Well, after I chained to the southwest corner of section 16 I found it did correspond very closely with the government field notes. From there I ran a straight line to the southwest corner of section 4 due north; then I put in a stake and divided that distance up equally; I divided the excess up equally between the two sections. From the county line I ran west to the southwest corner of section 10. Then I ran a straight line two miles west to the southwest corner of section 8 ; then I divided the distance up equally and put a stone there.

Q. That was the corner finally located?

A. Yes, sir.

Q,. Did you see the Phoebus corner while you were there?

A. Yes, sir.

Q. How far is the Phoebus corner from the corner you located ?

A. It is four chains and sixty-eight links south and two chains and eighty-two links west.

Q. That is the Phoebus corner?

A. Yes, sir.

Q,. Do you know the corner known as the Hasty corner?

A. Yes, sir.

Q. How did that corner correspond with the corner— with your survey ?

A. It was a very little west and about a rod south.

Q. Did you take either the Hasty corner or the Phoebus corner in consideration in locating that corner?

A. No, sir.

Mr. Hasty testifies:

■ Q,. Well, you may state what you did in making the survey to locate that corner.

A. Well, I can state it as well without the plat as I can with the plat, without you want me to give the measurements.

Q,. I want you to give the measurements and point them out to the jury as you testify.

A. It was ten years ago’and I only have my recollection and my notes to go by. As I recollect it, I was called there to survey, and I think I commenced on the north boundary of the section first, but at the northwest corner ■of the section, if I recollect right, there was a government corner, but there was some dispute about it.

Q. The northwest corner of what section ?

A. Section 8. I commenced at the northwest corner and ran south to the southwest corner, and I found that that corner had been obliterated and plowed up and destroyed at the southwest corner of the section. I think that in looking at my notes I found some signs, enough so I considered • that I found the place where the government corner was— the right government corner was, and so I put a stone where I thought it was; then I ran the north line of the section and when I came to the northeast corner of the section — I had been told something about several corners there at the northwest corner — and when I came there I found two plain government corners apparently, and a third one that was not so plain, but some man called my attention to it and he said he thought that it looked like a government cornel’ — I don’t know who it was now — I was unable to tell which was the government corner, but it looked very much like a government corner; one of them had two pits and a trench dug on the south side of it — that is, two pits -dug together. There were three corners and I .was at a loss to know what to do in the matter, and I think I selected one that apparently looked most like a corner and run south from that. A half mile south I discovered a quarter section with a mound and two pits, and that is what represents a quarter section. I kept on that direction south anoth¿r half mile and came out into a plowed field; anyhow I hád been told or seen this corner. I went the next day, I think it was. I went back to the southwest corner of section 8 (I am talking about section 8 now entirely). I went back to the southwest corner of section 8 and ran east:to see if I could find anything appearing like a corner, an'd somewhere in the neighborhood of half a mile I found a government corner, two pits and a mound. I ran east from that and missed this corner’. I think the chainmen, myself, and the flagmen were all present. I could not get any advice from anybody or understand anything about }t. I worked until night and I didn’t satisfy myself. I think the next day I went south. I think I went to the state line, but I didn’t keep the minutes of it so I could tell the time, but I went south to a plain government corner that no one disputed, and then I ran north and found a corner, I think half a mile south of this disputed corner) that any one could see, but they didn’t seem to know where it was. In going up on that line from the south I came to a corner marked ¿ S. a half a mile from the corner south of it at a proper distance on a true line. I made up my mind that that was a government corner, and I proceeded to the line up there and connected it with the line I run before, out at the same point in the plowed field. . I then took the measurements from the two pits, north of the disputed corner at the quarter corner. I studied the matter over and I thought the missing corner had been plowed up or something, and I set my corner half way between these two corners north and south.

Q. That \jvas half way between what corners — the quarter corner' north of the disputed corner and the quarter corner south of the disputed corner, and as I understand you .the quarter corner south of the disputed was marked with .a stone that had government marks on it?

A. It was marked ¿ S.

Q,. What kind of a mark — what kind of a government corner did you find a mile north of this disputed corner ?

A. I found two pits and a mound. There should have .been a stake, but I didn’t find any stake.

Q. Then yoii set your corner at an equal distance between these two quarter sections ?

A. Yes, sir; that is what I tried to do.

Q. T will ask you if this corner still stands there as the Hasty corner?

A. Yes, sir; the measurements come to the same point to-day again.

Q. Thep. your measurement establishing this corner was made in ’79, wasn't it?

A. It was.

Q. Now what measurements did you make the last time you were there ?

. A. Simply run over these lines, part of them that I had run before. I commenced on the state line, Kansas state line, and I took a corner on that line and ran north past this disputed corner across the township.

Q. How did you find the measurement from the Kansas line out as far as one-half mile south of this disputed corner as to the distance shown by the field notes ?

A. I can’t recollect the figures, I would have to get that from the chainmen. The first half mile I found to be forty-one chains and thirty-five links, and the next half mile was forty chains and thirty-five links, the next half mile forty chains and twelve links, the next half mile forty chains and twenty-five links, the next half mile forty chains and thirty links, the next half mile forty chains and seventeen links, the next forty chains and twenty-six links, which runs to the next corner south of the disputed corner.

Q. Now I will ask you if in ’79, when you made this survey, you found a government corner one mile south — or the first government section corner one mile south of the ■disputed corner?

A. I found what I supposed to be a government corner stone answering the description of the government field notes set in the ground that I took to be the government corner — supposed it to be. No one disputed it, at the time that I measured it, to be the disputed corner.

Q. This stone that you found half mile south of the disputed corner, is that stone there yet ?

A. Yes, sir.

Q,. Is it the same stone ?

A. It is the same stone.

Q,. In running on a general direct line with all the corners north and south on which you run a line could you strike the corner known as the Phoebus corner?

A. Not very close.

Q. On which side would it run of it — what side and about how far?

A. Most of the corners across the township would run a little east of where I set the corner.

' Q,. That would be still further east then than your corner is, or the Phoebus corner?

A. All the corners, I believe, but one or two, set east from that line.

Q, What is the distance between the stone that is half mile south — that is, the government corner — what is the distance between that corner and the Phoebus corner?

A. Thirty-five chains and ten links.

Q. What is the distance between that stone and your ■corner?

• A. In the survey that I made in ’79 it was forty, and in the survey the other day the chain men made it, as they returned it to me, thirty-five links over forty chains — forty chains and thirty-five links.

We thus see that there are three alleged corners at the corner of sections 8,9,16, and 17 — the one in dispute. That the government corner had- been tampered with was apparent to any person who examined the matter. Mr. Phcebus in making his survey does not say that he sought by starting from the established corners to arrive at the correct location of the corner in dispute. He seems to have taken the word of the man who employed him as to the location of the corners, and adopted the one most favorable to him. The value of such a survey in settling the exact line between land-owners is but little. On the other hand, both Worthington and Hasty, finding that the corner in dispute had been tampered with, started from clearly defined and recognized corners and found no difficulty in following the lines, and found both the section and quarter section corners both substantially on the lines running north and south, and also on those running east and west. It will be seen from the plat that the other lines are substantially straight and cross at right angles, while, if the corner in question as located by Phoebus is correct, the corner is out of the line more than twenty'rods. This is not very probable, and the proof fails to show in a satisfactory manner the location of the government corner at that point. In addition to this the corner as fixed by Worthington and Hasty gives to both the plaintiff and defendant the full amount of land to which they are entitled under their patents, while under the Phoebus survey the defendant in error would have at least ten acres more than the patent calls for, while the plaintiff in error would be that much short. Upon the whole case it is apparent that the verdict and judgment are against the clear weight of testimony and the judgment is therefore reversed and'the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.