Dowdle v. Cornue , 9 S.D. 514 ( 1897 )

Haney, J.

In its former decision, reported in 9 S. D. 126, 68 N. W. 194, this court assumes that defendants were attempting to work a section line highway on such section line, as located by the county surveyor, under circumstances which made his survey presumptively correct. The allegations of the complaint and argument of counsel seemed to fully warrant such assumption, and the court stated the burden was upon plaintiff to prove by a fair preponderance of the evidence that the section line was where it was claimed to be, and not where it was shown to be by the official survey. It appears from a re-examination of the record, which is unnecessarily voluminous, that defendants did not offer any official survey in evidence, and therefore the language of the opinion is not strictly accurate, but the effect of this inaccuracy of statement is not material. There was but one question of fact involved, namely, the location of the section line. On this question the evidence is conflicting. The county surveyor, at least, testified that it is where defendants claimed it to be. The weight of evidence does not depend upon the number of witnesses, but upon the pffect which it has upon the mind. The weight of this evidence was for the trial court. There is not a clear preponderance against its findings. The petition for rehearing is denied.