Arneson v. Spawn
| Decision Date | 20 October 1891 |
| Citation | 49 N.W. 1066,2 S.D. 269 |
| Parties | Arneson v. Spawn. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Where the question is as to the true location of a government corner, and whether a certain mound, pits, and stake testified to by witnesses, were the original marks of such corner, it is not error to admit evidence to show that such marks were years before, when they very plain and distinct generally regarded and recognized as indicating the original government corner; and to that end it may be shown that permanent improvements, as lines of trees, roads, buildings public and private, were, when such indications were plain and visible, located with reference thereto as the true government corner, by persons who had no other interest than to locate them correctly.
2. Where a written document or paper is offered in evidence, and its exclusion assigned as error, such rejected writing should be printed in the abstract, or its contents, or the facts upon which its competency depends, so particularly described as to fully inform this court of all the material facts upon which the trial court made its ruling. Otherwise no error is shown, and the ruling of the court below will be presumed to be correct.
3. It is not error for the trial court to withhold from the jury confessedly good law, when the same is not applicable to the questions before the jury on the evidence in the case.
4. The survey of the county surveyor, which under section 689 et seq., Comp. Laws, carries the presumption of correctness, is the survey made, authenticated, and recorded as therein provided. Parol evidence of the acts of such surveyor does not take the place of his official report, nor support the same presumption.
5. If the original corners, as established by the government surveyors, can be found, or the places where they were originally so established can be definitely determined, such location must control, without regard to whether they were located with mathematical correctness or not.
6. In determining whether the landlord or tenant, or both, may recover damages for injury to real estate, the general rule applies that wherever a legal right is violated the owner of such right is entitled to action therefor. If possession only is disturbed, the owner of the right of possession may have his action. If the freehold itself, independent of and beyond its use and enjoyment by the tenant, is injured, the owner of the freehold, in like manner, has his action.
7. In this state the owner of real estate in the actual possession of a tenant may maintain an action for permanent injury thereto.
8. When defendant planted a fence across a portion of plaintiff's farm, thus cutting it off and attaching it to and inclosing it as a part of his (defendant's) farm, claiming and taking possession of the same as his own, thus initiating a possession adverse to the plaintiff, which, unresisted, would ripen into a prescriptive title, the plaintiff may, although the premises are in the actual possession of a tenant for a definite term, maintain an action for injury to the estate.
9. In such case it is not required that the complaint shall state explicitly that plaintiff's interest is that of a reversioner, or that the injury complained of is to such reversionary interest, where it does state that plaintiff is the absolute owner in fee of the land, and also shows an injury which must necessarily affect the estate itself.
Appeal from circuit court, Minnehaha county.
Action by Ellen E. Arneson against Lewis Spawn for trespass. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.
Davis, Lyon & Gates, for appellant. McMartin & Carland, for respondent.
The answer denied, but on the trial it was conceded, that plaintiff was the owner in fee of the N.W. 1/4 of section 32, township 101, range 47, situate in Minnehaha county. The facts alleged as plaintiff's cause of action are thus stated in the complaint: "The defendant forcibly and unlawfully broke and entered upon the plaintiff's said land; took down a fence standing upon said land, removing the same; and also then and there erected another fence on said land, thereby fencing in about twelve acres of said land, the property of plaintiff; and also then and there disturbed the plaintiff in the use and occupation of said land, preventing her from enjoying the same, and from receiving the rents, uses, and profits thereof, as she otherwise would have done, to the damage of plaintiff," etc. Defendant's answer was a general denial. It was admitted at the trial that the defendant had, prior to the commencement of the action, fenced in about 13 acres of land which he claimed belonged to him,--a portion of the N. E. 1/4 of section 31, township 101, range 47, for which, it was conceded, defendant held a patent. It will thus be seen that plaintiff and defendant, respectively, owned adjoining quarter sections of land, and the dispute between them was as to the true location of the corner which should be at once the northwest corner of plaintiff's land and the north-east corner of defendant's land, for that would determine the boundary line between them.
Upon the trial George Arneson testified that in June, 1884, he found the corner referred to, and particularly described how it was marked by mounds, pits, and stake, and the condition it was in; that he lived in that vicinity from 1873 until 1882 or 1883, and saw the corner "a good many times;" that he knew the location of the traveled road between the two quarter sections involved, and the east and west road on the north side of them; that these roads had been traveled since 1874, and that at the time of the trial they crossed or intersected each other, just where they did when he first saw them; and that he recollected when the school-house was built, and when other improvements were made about that corner. He then testified that lines of trees were planted along the east and west road and the north and south road in 1875, and were still standing; that these lines of trees were on both sides of each road, about four rods apart; and that these lines of trees, so set, would correspond with the location of the corner, at the place where he had found it, as testified to and described by him; and that the line of trees running north and south opposite plaintiff's quarter (which would be defendant's quarter) were set by defendant, Spawn, in 1875. He also testified that the school-house was built on the south-east corner of section 30, on a one-acre lot which "runs down to the corner," and that the corner was visible when the grounds were laid out and the school-house built. (The south-east corner of section 30 would necessarily be the north-east of 31, and the northwest of 32, being the corner in controversy.) This evidence as to the location of the lines of trees and the school-house was received over defendant's objection that the same was incompetent and immaterial, and as calling for the opinion of the witness as to what other parties did.
This evidence may not have been of great value, and its force may have been afterwards modified by defendant's (Spawn's) testimony that he set his trees hurriedly, and without reference to the corner; but they were circumstances which, unexplained, tended to show the understanding of different parties in that vicinity as to the location of the corner. These were improvements of a permanent character, made by parties who would naturally be interested in locating them correctly; and, being located with reference to a visible mound, the fact would tend very directly to show whether they then regarded such mound as the mark of the government corner. It must be remembered that in this case the first search must be for the corner established by the government survey, for that is conclusive, if found; and at this point the primary inquiry was, did the mound, pit, and stake testified to by the witness indicate such corner? The witness says these marks were plainly visible when these improvements were located. We think the fact that defendant, Spawn, and others made and located these improvements with reference to these visible marks was fair evidence to go to the jury as to the impression which these marks made upon these various persons as they then observed them, and not as they now remember them. Of course, no boundary rights would be concluded by such facts, but we think they were circumstances which the jury might properly know, and which might fairly help them in solving the question whether the mound, pits, and stake testified to by the witness did or did not constitute the government corner. It was perhaps somewhat of the nature of traditionary evidence, often resorted to in the effort to establish ancient and obliterated land-marks, and in this case tended, at least, to show that many years before, when these marks were more distinct and intelligible, they were recognized by the people living there, including the parties to the present controversy, as indicating the corner established by the government. Baker v. McArthur, 54 Mich. 139, 19 N.W. 923; Coy v. Miller, (Neb.) 47 N.W. 1046.
Cyrus Walts testified that he was formerly a surveyor, and had been locating government land 19 years; that in June, 1873, he ran the lines of section 29, and found the government corner of sections 29, 30, 31, and 32; that with reference to the roads the corner was right where they crossed each other; and his evidence as to the location of this corner, and the presence and appearance of the monuments indicating the same, tended to corroborate the testimony of witness Arneson. The abstract says several other witnesses, without naming them "testified, in relation to the corner claimed to by plaintiff, the...
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