Black v. Walker
| Decision Date | 10 May 1898 |
| Citation | 75 N.W. 787,7 N.D. 414 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Traill County; Pollock, J.
Action by David A. Black against Thomas M. Walker and Agnes C Walker to determine the ownership of land. Judgment for plaintiff, and defendants appeal.
Affirmed.
W. C Resser, for appellants.
Carmody & Leslie, for respondent.
This action was brought to determine whether or not a certain triangular tract of land formed a portion of section 36 township 144, range 50, in Traill County, or a portion of section 35, same township. If the former, it belongs to plaintiff; if the latter, it belongs to defendant Agnes C. Walker. A trial to a jury resulted in a verdict for plaintiff. A motion for a new trial was denied, and judgment rendered on the verdict. There was an alleged irregularity about the motion for a new trial, which appellant seems to fear will prevent a review of the evidence in this court. But respondent makes no such claim. On the contrary, by his course he concedes that the evidence is before us. We need not, therefore, further notice the irregularity, if any there be; connected with the motion for a new trial. The claims of the respective parties will be more readily comprehended by a diagram:
[SEE DIAGRAM IN ORIGINAL]
Sections 36 and 35 are, of course, on the south line of the township. It happens also, in this instance, that they are on the south line of the county; sections 1 and 2 directly south being in Cass County. It is conceded that point A is the original corner between said two sections on their North line, established by government survey. The contention is over the location of the original corner on their south line, both parties conceding that the original corner must govern. Plaintiff, who owns the west half of section 36, claims that the corner is at point C, while defendant Agnes C. Walker, who owns section 35, claims that it is point B. Defendants have occupied and cultivated the land up to line A-- B, while plaintiff claims to the line A--C. The distance from B to C is 7 3/4 rods. The contest is over the triangular tract bounded by those lines.
Some errors are assigned upon the admission of testimony, but the rulings were clearly right, and the points raised involve nothing of general interest. The chief reliance of appellant is upon the assignment which raises the question of the sufficiency of the evidence to support the verdict. The controlling points in the evidence may be stated very briefly: Several parties testified that they had at different times assisted in measuring the distance along the south side of said section 36, commencing at the southeast corner (about the location of which there is no dispute,) and that the distance to point C was 320 rods, and that the south line of section 35, measuring from point B to west line, was 7 3/4 rods more than a mile. The original field notes of the government survey were introduced, showing the survey between townships 143 and 144 north, range 50 west, and from which it appears that, commencing at the point where the line between townships 143 and 144 intersects the line between ranges 50 and 49 (which would be the southeast corner of said section 36) the surveyor then ran west "on the true line between sections one and thirty-six" 80 chains (320 rods,) and "drove charred stake, and set post in mound, for corner to sections 1, 2, 35, and 36," and continuing west on line between sections 2 and 34, at the distance of 80 chains further, a like corner was established between sections 2, 3, 34, and 35. It was also shown that the highway which should be on the section line between sections 35 and 36 ran just east of the line A--B, but when it reached the south line of section 36 it turned directly west, and followed the east and west road to point C, and then ran south on the line between sections 1 and 2, but that there was no such offset at the township line in the highways on the section lines east or west. This was the testimony upon which the plaintiff relied. For the defense the appellant Thomas M. Walker testified that when he took possession of section 35, in 1880, the corner stakes were standing, and clearly visible, and were at point B; that in breaking up the land he established a straight line by means of intermediate stakes between the original government stakes at the southeast and northeast corners of said section 36, and broke the land, and has since occupied it with his co-defendant only up to the line so established. Another witness for the defense (Mr. Kenyon) testified that at one time he owned the northeast quarter...
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