Brinton v. Steele

• Decision Date: 12 April 1913
• Citation: Brinton v. Steele, 131 P. 662, 23 Idaho 615 (Idaho 1913)
• Parties: CALEB BRINTON Attorney in Fact of THOMAS W. JONES, Appellant, v. WESLEY STEELE and N. M. BEGGEMAN, Respondents
• Court: Idaho Supreme Court

131 P. 662

23 Idaho 615

CALEB BRINTON Attorney in Fact of THOMAS W. JONES, Appellant, v. WESLEY STEELE and N. M. BEGGEMAN, Respondents

Supreme Court of Idaho

April 12, 1913

EVIDENCE-SUFFICIENCY.

1. Where the evidence is conflicting as to the facts, and there is substantial evidence supporting the findings of fact by the trial court, the findings and the decree entered in accordance therewith will not be reversed.

2. Where there is substantial evidence supporting the findings of the trial court upon the issues of fact, and such findings can be reconciled as a whole, and the decree is in accordance with the findings supporting such issues, such findings will not be held to be contradictory or inconsistent.

3. Where findings of fact are made and a decree entered wherein the boundary line between lots 12 and 13 in block 30 of the city of Lewiston is involved, and such findings are not certain, and will not enable the parties in interest to identify the exact line of division upon the ground, the findings and decree will be set aside and the trial court directed to make new findings and enter a decree describing the true line between the two lots by a correct and certain description, referring to monuments and markings upon the ground showing the true line.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

An action to quiet title to real property. Judgment for defendant. Reversed.

Judgment reversed. Costs in this appeal divided equally between the parties. Petition for rehearing denied.

Ben F Tweedy, for Appellant.

A judgment cannot stand when it is based on findings of fact which are antagonistic, inconsistent or contradictory as to material matters. (Langan v. Langan, 89 Cal. 186, 26 P. 764; Learned v. Castel, 78 Cal. 454, 18 P. 872 21 P. 11; Carman v. Ross, 64 Cal. 249, 29 P. 510; Sloss v. Allman, 64 Cal. 47, 30 P. 574; Reese v Corcoran, 52 Cal. 495; Authors v. Bryant, 22 Nev. 242, 38 P. 439.)

The finding that the plat line of Maxon and Briggs is the property line between lots 12 and 13 will not be implied or inferred, since it conflicts with the express finding that the row of poplar trees is the property line between 12 and 13. (Beaverhead Canal Co. v. Dillon Electric Light etc. Co., 34 Mont. 135, 85 P. 880.)

Inconsistent and conflicting findings of fact are a ground for a new trial. (Kerns v. McKean, 65 Cal. 411, 4 P. 404; Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Manly v. Howlett, 55 Cal. 94; Reese v. Corcoran, supra; Learned v. Castle, supra; Sloss v. Allman, supra.)

Geo. W. Tannahill and Fred E. Butler, for Respondents.

In case of conflict, the court will not disturb the findings of the trial court, who saw the witnesses upon the stand, heard them testify, and was acquainted with the circumstances surrounding their evidence. (Pine v. Callahan, 8 Idaho 684, 71 P. 473; Stuart v. Hauser, 9 Idaho 53, 72 P. 719; Parke v. Boulware, 9 Idaho 225, 73 P. 19; Robertson v. Moore, 10 Idaho 115, 77 P. 218; Gumaer v. White Pine Lumber Co., 11 Idaho 591, 83 P. 771; Heckman v. Espey, 12 Idaho 755, 88 P. 80; Later v. Haywood, 15 Idaho 716, 99 P. 828; Western Moline Plow Co. v. Caldwell, 18 Idaho 463, 110 P. 533; Weeter Lumber Co. v. Fales, 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289; Salisbury v. Spofford, 22 Idaho 393, 126 P. 400.)

The respondents and their grantors have been in the open, notorious and adverse possession of the said tract of land for many years last past. The row of poplar trees has marked the boundary line between lots 12 and 13, and has been recognized as such. The appellant has platted the land, sold lots, and permitted the respondents and others to build in accordance with the lines as established, and he is not now in a position to complain that the plat he filed is incorrect. (Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066; Goltermann v. Schiermeyer, 111 Mo. 404, 19 S.W. 484, 20 S.W. 161; Brown v. Clark, 73 Vt. 233, 50 A. 1066; Lemmons v. McKinney, 162 Mo. 525, 63 S.W. 92.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

This action was brought by appellant to quiet title to a strip of land near the line of subdivision between lots 12 and 13, block 30 of the city of Lewiston. The trial court entered a decree quieting the title in the respondent to the following strip of land: "A triangular strip of land, and every part thereof, the same being a strip of land 11 feet inches wide at the south end thereof, and at the north end both east and west boundaries terminate at the same point, the same being a part of lot 12, block 30, of the original plat of the city of Lewiston, Idaho, and the same being located on the west side of the row of poplar trees extending through and across said tract of land, marking the east boundary line of lot 12, block 30, of the original plat of the city of Lewiston, Idaho."

The evidence shows that the city of Lewiston was surveyed by E. B. True in August, 1874, and field-notes were prepared and a plat of said city according to such survey was prepared and approved by the mayor and trustees of the city of Lewiston on June 26, 1875, and was filed for record July 1, 1879, in the records of Nez Perce county. This plat shows block 30; the names of the streets are not clearly shown, but lots 12 and 13, block 30, are designated.

It appears that Wesley Steele, the respondent, is the owner of lot 12, block 30, and that the appellant Jones is the owner of the west half of lot 13, block 30, and that block 30 is a block in the original plat of the city of Lewiston, Idaho. The appellant Jones subdivided and platted the west half of lot 13, which was subdivided into lots, blocks, streets and alleys, and lots were sold according to such plat to various parties who have built and constructed residences, business houses, and made substantial improvements in accordance with the plat of said west half of lot 13 of block 30.

The controversy arises from a dispute between the appellant and respondent as to the line dividing lots 12 and 13. Under the appellant's contention the strip in controversy and described in the decree is a part of lot 13 and is owned by appellant; while the respondent contends that the triangular strip described in the decree is a part of lot 12 and is owned by the respondent. The trial court concluded that the evidence supports the contention of the respondent, and that the strip of land in controversy is a part of lot 12.

This appeal is from the judgment. Several errors are assigned, all of which may be considered under the following contentions of the appellant: First, that the evidence does not support the findings and decree.

It appears that E. B. True made a survey of the city of Lewiston and prepared field-notes on the dates heretofore stated, and that Briggs, who had done surveying work for the government and the county, did work for Brinton in the way of subdividing lot 13, block 30 in the city of Lewiston, and in making a plat thereof. The survey was started at a monument at Kettenbach's on the east boundary of the old original town of Lewiston, and is shown by True's notes at a line east a half mile, north a quarter mile from the corner near the Normal school. Briggs testifies: "I brought that line down Main street and also along the foot of the hill until I came to the line between the public high school . and . . . . I got to that line and I found from surveys that had been made by Mr. Bell that there was a monument at the west end of Idaho street. I took that for a stopping point; that checked up with the monument at the end of what we call Schoolhouse Lane; then I went down to the monument on C street, and it says 40 feet west and 40 feet south will establish the northeast corner of the block, now occupied by the Cash Hardware store. I took the course of that and it came to the south line of E street or Main street, and produced the southwest corner of Block 30; then from Mr. True's notes--he gives some courses and distances, and I checked those out and then in order to establish the points where his courses are not given, I measured south from Main street and then swung that point so that the distance would fit that he gave in the notes, with the courses. Then I joined my work together and there was quite a discrepancy on the south boundary, but on the north boundary along the south line of Main street I think it checked out very close. Then I apportioned that distance in proportion--so many feet to the hundred. That gave lot 13 just about three feet lacking a very small fraction of an inch, that is on the angle that was made by extending lot 13 longer than the original survey made by True. I apportioned that distance and also gave the schoolhouse their proportion and the lot that belongs to Mrs. Whitman and also coming up along the brow of the hill, and from that distance I established the boundary line of lot 13. Then I divided that lot and I found that the excess there was about three feet as near as I can remember, and then I produced that line south to the center line of Main street, and I of course established the southwest corner from that line, found the distance by measuring back from Main street. And then I ran that line, and in running that line it hit the trees just as close to the center as I could see from off the hill. I found that I had to make an offset. By trees I mean the first tree that I struck in sighting, it was on the line between lots 12 and 13. The line hit the trees close to the center. I knew the trees were in the way, and I then went to Main street, that being the shorter distance than it was on the south side, and I measured the whole distance, and then I apportioned the distance that would be right south of the...