Bridenbaugh v. Bryant

• Decision Date: 07 June 1907
• Docket Number: 14,819
• Citation: 112 N.W. 571,79 Neb. 329
• Parties: J. WILLIAMS BRIDENBAUGH, APPELLANT, v. CHARLES BRYANT, APPELLEE
• Court: Nebraska Supreme Court

112 N.W. 571

79 Neb. 329

J. WILLIAMS BRIDENBAUGH, APPELLANT, v. CHARLES BRYANT, APPELLEE

No. 14,819

Supreme Court of Nebraska

June 7, 1907

APPEAL from the district court for Dakota county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

Hubbard & Burgess and R. E. Evans, for appellant.

William P. Warner, contra.

CALKINS C. JACKSON and AMES, CC., concur.

OPINION

CALKINS, C.

Township 28 of range 8 east, in Dixon county, was subdivided in 1858. Its settlement began in 1855, but, the center of the township being low and marshy, the north and south parts thereof were first occupied. In 1890 a highway, known as the "Swamp road," was established on the half section line east and west through section 16. The plaintiff became the owner of the north-east quarter of the southwest quarter of this section, and the defendant owned the southeast quarter of the northwest quarter thereof. The Swamp road was for some years treated as the boundary line between these two proprietors. In 1893, there being a dispute as to the proper location of some portions of the Swamp road, the county surveyor, Dixon, undertook to survey it. He began at the southeast corner of section 28, at a stone which is conceded to mark the site of the corner established by the original government survey, and ran north to the seventh standard parallel, a distance of five miles. On the line so run there were monuments at or near the southeast corner of 16, the quarter corner on the east line of 16, the northeast quarter of section 9, and the quarter corner on the east line of section 4; but these the surveyor did not consider authentic, and disregarded. He thereupon proceeded to place new monuments according to the regular method of reestablishing lost corners. He also retraced the government survey north from the southwest corner of section 28 to the seventh standard parallel. Upon this line there were monuments at the southwest corner and at the quarter line of section 4, which he also disregarded. This survey resulted in locating all the parallel boundary lines in the north part of the township from 1 1/2 to 3 chains north of the monuments disregarded by Dixon, the surveyor, and north of the fences, roads and lines according to which the country had been settled and improved, including the Swamp road, running between the land of the plaintiff and the defendant. It left some 7 acres of the land, theretofore claimed and in the possession of the defendant, south of the half section line, and to recover possession of this tract the plaintiff brought this action. There was a survey made by a surveyor named Smith, which recognized as government corners the monuments we have mentioned as having been disregarded by Dixon. The Smith survey resulted in locating the half section line at the center of the Swamp road on the east line of section 16, and slightly further north on the west line, so as to leave a triangular tract of land seven links wide at the west end, and vanishing to a point 290 feet east thereof, north of the Swamp road and south of the half section line. A jury being waived, there was a trial to the court, who found the Smith survey correct, and gave the plaintiff judgment for restitution of the triangular tract of land above mentioned. From this judgment the plaintiff appeals.

1. If Dixon was justified in disregarding the monuments on the line run by him from the southeast and the southwest corners of section 28 to the seventh standard parallel, then his survey was correct. If the evidence establishes the fact that these monuments marked the site of the original government corners then the Dixon survey is wrong, and the Smith survey correctly fixes the boundary between the plaintiff's and defendant's land. The rule that fixed monuments and known corners govern both courses and distances is well established. Johnson v. Preston, 9 Neb. 474, 4 N.W. 83; Minkler v. State, 14 Neb. 181, 15 N.W. 330; Thompson v. Harris, 40 Neb. 230, 58 N.W. 712; Clark v. Thornburg, 66 Neb. 717, 92 N.W. 1056. If, therefore, the evidence established the fact that the monuments recognized by Smith in making his survey mark the true location of the original government monuments, it follows that the survey of Dixon was wrong, and should be disregarded. The district court found that the Smith survey was correct, and this, we think, involves the finding that the monuments recognized by Smith marked the true site of the original monuments. It is, however, claimed by the plaintiff that the special findings of the trial judge are inconsistent with his general conclusion, in that he did not in his special finding determine that the post at the southwest corner of section 4 was a government monument; and that he did not find that the southeast corners of 4 and 16 were true government corners. If this be true, the special did not go as far as the general findings; but they are not inconsistent therewith. The trial judge did find that the east quarter corner recognized by Smith is a true corner, and his failure to find that the other corners on that line are true corners is immaterial. We have, however, examined the evidence, and are satisfied that it would have justified a finding that all the corners recognized in the Smith survey marked the site of the original corners. There was...