Beltz v. Mathiowitz

• Decision Date: 03 June 1898
• Citation: 75 N.W. 699,72 Minn. 443
• Parties: BELTZ v MATHIOWITZ.
• Court: Minnesota Supreme Court

72 Minn. 443

75 N.W. 699

BELTZvMATHIOWITZ.

Supreme Court of Minnesota.

June 3, 1898.

(Syllabus by the Court.)

1. The rule is well settled that the corner of a government subdivision of land is where the United States surveyors establish it, whether the location is right or wrong.

2. If a government quarter-section or section post has disappeared, the site of its location may be established by clear and satisfactory evidence, and, if so established, will control and govern as fully as if the original post remained.

3. Gen. St. 1894, § 836, is construed in harmony with this rule. It applies only to cases where the original posts have been destroyed, and the sites of their original location cannot be ascertained by evidence of the character before mentioned.

Appeal from district court, Brown county; B. F. Webber, Judge.

Action by Charles Beltz against Simon Mathiowitz. Judgment for plaintiff, and defendant appeals. Affirmed.

John Lind, for appellant.

Somerville & Olson, for respondent.

COLLINS, J.

This litigation grows out of the dispute over the exact location of the east and west line between the N. E. 1/4 of section 13, township 111, range 33, owned by plaintiff, and the S. E. 1/4 of the same section, owned by defendant. The east line of this section is the east line of the township, and a highway laid out thereon has been graded and traveled for many years. The real cause of the dispute is the disappearance or destruction of the quarter corner post established and set many years ago by the government surveyors on the line between said section 13 and the section exactly east thereof, the place of location being now a part of the graded and traveled highway. It is the claim of counsel for plaintiff that, notwithstanding the disappearance of the original post, its exact location was clearly and satisfactorily shown upon the trial. The court so found when it fixed the line between the two quarter sections, and, in effect, located the quarter corner 119 chains and 66 links north of the southeast corner of section 24 in the same town and range. Defendant's counsel insist that the finding was not warranted by the evidence, and further, even if it was, that under the provision of Gen. St. 1894, § 836, the government field notes are the primary evidence for finding or locating a corner in all cases where it appears that the post originally located by the government surveyors has been destroyed, and that these notes must control in every such instance. And it seems to stand confessed by all that, if the field notes are to govern, the disputed corner must be fixed about 34 links north of the point designated by the court below. So that, upon the trial, the plaintiff's counsel devoted their energies to an attempt to establish the actual site of the original post as the same was placed in position by the government...