Antone v. Hoffman

Careful consideration of the record has convinced us that plaintiff in error's insistence that the instructions to the jury in connection with the issue set out in the statement above were erroneous because calculated to mislead them in that thereby they were authorized to determine the location of the Singleton survey on the ground with reference to surveys thereof made by other surveyors than the one who made the field notes on which it was patented should be sustained. The contention is predicated on the failure of the trial court, when he told the jury to determine if the land in controversy was a part of the Singleton survey as laid out and located on the ground by "the surveyor," to explain that the surveyor he meant was the one who made the field notes on which the survey was patented. The case presented by the record is a peculiar one, in that there was testimony which indicated that trees answering to the description of those called for in the field notes of the Singleton survey at the southwest corner thereof were found at a point which the jury might have concluded was a prairie in 1856, when the survey was made, 837 varas south of its northwest corner, and also at a point in a prairie 1,074 varas south of said northwest corner; and trees answering to the description of those called for in said field notes to be at the southeast corner of the survey were found at a point 837 varas, and also at a point 1,074 varas, south of the northeast corner of the survey. If trees marked and otherwise answering to the description of those called for in said field notes were in fact on the ground in a prairie when the survey was made 837 and 1,074 varas, respectively, south of the northwest corner of the survey, and if trees answering to the description of those called for in said field notes were in fact on the ground at points 837 and 1074 varas south of the northeast corner of the survey, then evidently other surveys than the one made by the surveyor on which the patent was issued were made of the Singleton survey, and other corners than the ones established by that surveyor were established for its southwest and southeast corners. It was important, therefore, that the jury might not be misled, that they should have been plainly told that they must determine the location of the Singleton survey with reference alone to the points on the ground where the surveyor who made the field notes on which it was patented established its southwest and southeast corners, and without reference to corners which were established on the ground by other surveyors.

In conformity to the conclusion reached with reference to the contention discussed, the first and fifth assignments are sustained. The second, in which complaint is made of the action of the court in submitting to the jury an issue as to adverse possession by defendant in error of the land in controversy, also will be sustained, because such an issue was not made by the testimony. The other assignments are overruled.

The judgment will be reversed, and the cause will be remanded to the court below for a new trial.