DocketNumber： 19383
Judges： Zimmerman, Hall, Stewart, Durham, Howe
Filed Date： 7/28/1988
Status： Precedential
Modified Date： 10/19/2024
(dissenting).
I dissent. I believe that the plaintiffs are entitled to judgment as a matter of law.
As the majority correctly states, the only issue at trial was the location on the ground of the northeast corner of lot 12, block 34, Providence Farm Survey. The defendants’ experts concluded that the corner on the ground was 33 feet south of where the plaintiffs’ expert placed it. As the majority correctly observes, the location of an obliterated corner must be determined by technical rules which have been adopted by the surveying profession and by the courts. This is accomplished by giving priority to certain types of evidence over other types. When that is done, as I will demonstrate below, the corner must be located on the ground as a matter of law at the location contended for by the plaintiffs.
As can be seen from the accompanying sketch, the plaintiffs and the defendants are adjoining landowners in lot 12, block 34, Providence Farm Survey. The plaintiffs’ property is described with reference to the northeast corner of lot 12, while the defendants’ property is described with reference to the northwest corner of lot 12. However, the experts for both parties agreed that the two corners should be directly east and west from each other and that for the purposes of this lawsuit, the location of the northeast corner would also automatically locate the northwest corner. The original monument at the northeast corner (if it ever existed) cannot now be found. The southeast corner of lot 12 is marked by a monument, the location of which is not disputed by either party. They also agree on the location of the northeast corner of lot 17, block 8 and that the two points are 2,733 feet apart as shown on the sketch. But because the length (north-south distance) of lot 12 as laid out by the original surveyor is not known, the location of the northeast corner of lot 12 is not readily apparent.
The major difficulty in this case stems from the fact that the plat of the Providence Farm Survey made by the surveyor
Experts for both parties agreed that when a monument has been obliterated, it should be located by following the footsteps of the original surveyor and restoring it where he placed it even though he may have mistakenly placed it at a wrong point. The defendants based their case on the location of the northeast corner of lot 12 largely on the Martineau plat. Their surveyor, relying on the plat’s scale of five chains to an inch, scaled the east side of lot 12 along the west side of Sixth East Street as shown on the plat and came up with the distance of 1,320 feet. When he measured 1,320 feet north from the southeast corner of lot 12 (the only known point on the ground in lot 12), he arrived at a point 33 feet south of the Larsen fence corner. The Larsen fence corner is the northeast corner of the Larsen tract as shown on the sketch and is the point where the south line of Eighth South Street and the west line of Sixth East Street coincide. The defendants’ expert also relied on the fact that an early deed (1877) conveyed the “west part of the north part of lot 12” and recited that it was 660 feet by 330 feet and contained five acres. The defendants concluded that the “west part of the north part” meant the west one-half of the north one-half, and since lot 12 is undisputably 660 feet wide (east and west), the north half would have to be 660 feet long, or half of 1,320 feet, to make five acres, which is 217,800 square feet or 660 feet times 330 feet.
On the other hand, the plaintiffs’ case rests primarily on the facts that the descriptions in most of the deeds of all landowners in lot 12, past and present, are tied to (or described with reference to) the northeast corner of lot 12 and that everyone has located that corner on the ground at the Larsen fence corner. Some deeds are double-tied, that is, the descriptions are tied to the northeast corner and also to the southeast corner of lot 12, a known and undisputed point on the ground. These deeds show the two corners to be 1,353 feet apart rather than the 1,320 feet which the Martineau plat scaled. The plaintiffs also relied on the fact that all landowners in lot 12 have possessed their tracts and built fences around them in accordance with the measurements from the Larsen fence corner except the defendants’ south line, which was only partially fenced until this dispute arose. That fence was south of where it would run if measured from the Larsen fence corner.
The jury found for the defendants, locating the northeast corner of lot 12 at a point 33 feet south of the Larsen fence corner. While jury verdicts are not to be lightly overturned, when well-recognized rules contained in surveyors’ manuals and in case law are applied, the verdict cannot stand. These rules give priority to lines of possession maintained by landowners on the ground which have been built with reference to the obliterated corner. In the leading case of Diehl v. Zanger, 39 Mich. 601 (1878), the original stakes and monuments set by the original surveyor, Thomas Campau, were obliterated. Twenty-five years later, a city surveyor, after searching for the original stakes and finding none, proceeded to take measurements according to the original plat and to drive stakes of his own. According to this survey, the practical location of the whole plat was wrong and all lines should have been moved between four and five feet to the
The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance, — a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned. But its application in other cases is quite as proper, and quite as necessary to the protection of substantial rights. The city surveyor should, therefore, have directed his attention to the ascertainment of the actual location of the original landmarks set by Mr. • Campau, and if those were discovered they must govern. If they are no longer discoverable, the question is where they were located; and upon that question the best possible evidence is usually to be found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known; Stewart v. Carleton, 31 Mich. 270. As between old boundary fences, and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are....
Diehl v. Zanger, 39 Mich, at 605-06 (emphasis added). More recently, in Wacker v. Price, 70 Ariz. 99, 216 P.2d 707 (1950), the court, after citing with approval and quoting from Diehl v. Zanger, supra, stated:
[S]ince it has always been the rule that courts must resort and be bound by the best evidence available, it follows that the boundaries fixed by the property owners themselves in the absence of the inability of surveyors to definitely fix the monuments from which the original survey was made must control and that the city surveyor nor any other surveyor has any authority to establish new boundaries which must of necessity affect the property rights of all property owners concerned where they cannot establish title by adverse possession.
Wacker v. Price, 70 Ariz. 99, 216 P.2d 707, 711-12 (1950); see also James v. Hitchcock, 309 S.W.2d 909 (Tex.Civ.App.1958); Westgate v. Ohlmacher, 251 Ill. 538, 96 N.E. 518 (1911); Trotter v. Stayton, 41 Or. 117, 68 P. 3 (1902).
Applying the law of the cases
Not only does the best evidence support the plaintiffs’ theory as a matter of law, the defendants’ theory as to the location of the corner is seriously flawed. First, the defendants’ expert placed the northeast corner of block 34 and the northeast corner of lot 12 at points 33 feet apart. The very Martineau plat upon which he relied showed the two corners to coincide. The Martineau plat also showed Eighth South Street to be 66 feet wide, but all the evidence was that it has always been only 33 feet wide. The Martineau plat also showed Eighth South Street running east of Sixth East Street, but everyone agreed that it never has run east of Sixth East Street and that all of the land there is in private possession and ownership. The Martineau plat contains no measurements or distances upon it except for the streets, and the defendants’ contention that the east line of lot 12 should extend only 1,320 feet because it scales that distance on the Marti-neau plat cannot stand against the practical location on the ground by the various property owners who have occupied and fenced 1,353 feet. If indeed Eighth South Street should contain 66 feet as the Martineau plat shows, the plaintiffs correctly argue that it is equally plausible that the present 33-foot road is the south half of that road and the other 33 feet lie north and not south of that road because block 8 undis-putably measures 27 feet longer than 1,320 feet.
In summary, the best evidence obtainable unmistakably places the northeast corner of lot 12 at the point contended for by the plaintiffs. The lines of possession and boundary fences observed and established by the various landowners over a period of many years are silent witnesses of the location of the corner at the Larsen fence corner. These landowners have occupied 1,353 feet along the west side of Sixth East Street. This evidence must prevail over the Martineau plat, which contains no measurements or distances upon it except for Eighth South Street, and all parties agreed that Martineau may have prepared the plat without actually going over the ground. When the Larsen fence corner is adopted as the northeast corner of lot 12, no boundaries will be disturbed except the one in dispute in this case and no reformation of deeds will be required by other property owners in lot 12. No strip of “no-man’s-land” will be left, and all property owners, including these plaintiffs and defendants, will have all the property their descriptions call for. The mischief pointed out by Justice Cooley in Diehl v. Zanger, supra, will be avoided:
Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true to the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.
Id. at 605.
I therefore would reverse the judgment of the trial court and direct judgment to be entered in favor of the plaintiffs.
. This law should not be confused with boundary by acquiescence, dealt with in Halladay v. Cluff, 685 P.2d 500 (Utah 1984). Neither party here claims anything by boundary by acquiescence, and that doctrine is not in any way part of this opinion.