Britton v. Ferry

• Decision Date: 05 January 1866
• Court: Michigan Supreme Court
• Parties: Patrick Britton v. William M. Ferry and Eliza Stuart

14 Mich. 53

Patrick Britton v. William M. Ferry and Eliza Stuart

Supreme Court of Michigan

January 5, 1866

Heard November 7, 1865; November 8, 1865; November 9, 1865 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Kent circuit.

This was an action of ejectment brought by William M. Ferry and Eliza Stuart, defendants in error, for the recovery of certain premises, in section thirty-six, in township seven north, of range twelve west.

With the plea of the general issue the defendant below filed the following notice:

"To plaintiff's attorneys.

"Take notice, that on the trial of this cause, the defendant will give in evidence, and insist, under the above plea of the general issue:

"That the United States of America originally caused to be made a survey of a certain tract of land in the county of Kent and state of Michigan, now known and designated by reference to such survey, as section thirty-six, in town seven north, of range twelve west, and that in surveying out and establishing the north line of so much of said section as lies south of Grand river, it established the quarter stake on said north line at a point which is forty-five chains west of the northeast corner of said section;

"That one Elijah Grant (now deceased), late of the county of Washtenaw, in said state of Michigan, became the purchaser of said United States of the northeast quarter of said section thirty-six;

"That the north boundary line of the same commences at the northeast corner of said section thirty-six, and extends by the original survey aforesaid westerly on the north line of said section to the quarter stake, a distance of forty-five chains, or thereabouts;

"That the west boundary line of said northeast quarter commences at the quarter stake last named, and runs southerly in the direct line of the quarter stake on the south line of said section forty chains, or thereabouts;

"That the only occupation by said defendant of any land upon said section thirty-six is within the boundaries above named, and that his right to occupy he derives from one Raymond O'Hara, who is his landlord, and that the ownership of the premises so occupied by him is in the said O'Hara, by a title originally derived through said Elijah Grant, deceased.

"Yours, etc.,

"Miller & Rogers, defendant's attorneys."

The cause was submitted to the jury under the charge of the court.

The defendant requested the circuit judge to charge the jury as follows:

That the stakes and points designated and made in the government survey as boundaries of divisions and subdivisions of sections, when ascertained and proved, control courses and distances, and must prevail; which charge was refused and excepted to.

The circuit judge then charged the jury as follows:

1st. "That the law of congress does not require the setting of quarter posts, so called, in section lines on the ground.

2d. "That in case of regular sections, they are subdivided according to law, by lines protracted on the plat from points in the section lines, equidistant from those two corners which stand on the same line.

3d. "That in case of fractional sections, the subdivisions are to be made by law by lines protracted on the plat from north to south, or east to west, so as to make as many one-half quarter sections as practicable.

4th. "That quarter posts, so called, placed on section lines by surveyors, are not such fixed, definite and established points as to conclude parties, or determine boundaries.

5th, "That in case of fractional sections which must be subdivided according to law as above stated, an act of a surveyor fixing or settling a quarter post at any other point than that where a due north and south line (as in this case) drawn from the proper point on the opposite line would strike this line is void, and such act of the surveyor cannot be paramount to, or override the law.

6th. "That the settled policy of congress has been to divide the public lands in square or right angled figures, and not by forming oblique or acute angles."

To which said instructions and charges the counsel for the said defendant did then and there except.

Judgment having been rendered for the plaintiffs, defendant brought error.

Judgment reversed.

Miller & Rogers, and Joslin & Blodgett, for plaintiff in error:

The only questions for the consideration of this court are the correctness of the decisions of the circuit judge in his charge to the jury.

1st. We insist that by the law a quarter post once placed and witnessed by the United States surveyor, can only be changed by the government, and that before the land is sold.

2d. That any monument overrides courses and distances: 5 Mass. 355; 6 Id. 131; 19 Pick. 445; 2 N. H., 197 and 287; 6 Wheaton 580; 7 Id. 7; 6 Peters 328.

3d. Lines must be held as they were run, not as they ought to have been run: Wright, Ohio, 171, 576, 599; 1 Doug. Mich., 19, 29; 4 McLane 268; Acts of Congress, 1805, 1820; Opinions of Com. of Land Office, 24 Ala. 391; 2 Porter Ala., 38; 24 Ala. 521; 7 Porter Ala., 428; 5 Dana Ky., 543; 1 Shepley, Me., 329; 2 Shepley Me., 66; 10 Ohio 163; 2 App. Me., 205; Wright, 634; 3 Harr. Del., 88; 1 Gratt. Vir., 211; 1 Richardson S. C., 491; 16 Ga. 141; Addison Penn., 359.

4th. Quarter section lines are not run, but quarter section corners are found and marked by the surveyor, and when marked are not to be moved after the sale, without the consent of the owners.

5th. A line, corner or post, made for the inspection of buyers, or shown them by the grantor, is binding upon the parties: 2 N. H., 303.

George Gray, for defendants in error:

The principal question in this case is: If a deputy surveyor, in subdividing a fractional township of the public lands of the United States, in the year 1831, set a quarter stake, so called, in a fractional section line of that township, does that act of the surveyor fix and determine absolutely and conclusively, as between the owners of the contiguous subdivisions of the section, the corners and boundaries of such subdivisions, however erroneous that act of the surveyor may be?

The defendants in error hold the negative of this question.

The certified copy of the plat, which is part of the record, shows that the east and south lines of section thirty-six are regular; that the west and north lines are fractional; and that the entire of the fractional section contains three full quarter sections of 160 acres each, and a fractional quarter section of 120 72-100 acres. The east and south lines are also township lines.

The plaintiff in error claims that the deputy surveyor, in running the north line of the township, set in said line a "quarter stake," so called, at a point which is about forty-five (45) chains west of the northeast corner of said section thirty-six, being about twenty (20) rods west of the point where the northwest corner of the northeast quarter of said section is shown to be by the plat. The land lying south of, and adjoining to, these twenty rods, is that in controversy.

The defendants in error claim that even if the deputy surveyor set a stake, as and for a "quarter stake," so called, forty-five chains west of the northeast corner of said section (as to which there was contradictory testimony), such act of the surveyor did not, and does not, establish the corner, or determine the boundary between the northeast and northwest quarters of the section; that such act was, and is, wholly unauthorized by law, and of no force or effect; and that the boundary line between said quarter sections is, and should be, a line drawn from the center of the south line of the section due north, as shown on the plat.

1. The acts of congress do not authorize, or require, the setting of "quarter stakes," so called, or the designation, in any manner, on the ground, of the corners or boundaries of subdivisions of a section, other than section corners and section lines.

(The various acts of congress were cited and commented upon by counsel.)

Up to 1805, no law of congress had ever been passed, and no provision adopted, for running or marking any line or corner of a tract or parcel of the public lands less than a section (except in the case of certain half sections), and that section lines and section corners were also lines and corners of the respective subdivisions of the sections.

In the case of sections the government has arranged their boundaries, and marked their lines and corners; but in the case of subdivisions of sections, their lines and corners are to be ascertained and determined by lines protracted and drawn on the plat according to the principles and in the manner specified: 3 How. U.S. Sup. Court, 650. See dissenting opinion of Judge Catron, 2 Porter 38.

So far as township and section lines and corners are concerned, where they are actually run and marked, so are they established and held to be; because, 1st, the act of so running and marking such lines and corners was by authority of law; and, 2d, on each section line and corner, and on each township line and corner, depend all the remaining sections in the township, and all the remaining townships in the district. Such is not the case in respect to subdivisions of sections; their corners or lines are not required by law to be marked on the ground, and an error of any kind therein can only affect the contiguous subdivisions of the same section.

2. Fractional sections containing over 160 acres are subdivided, according to law, by lines running due north and south, or east and west, and any other subdivision is contrary to law, and void.

As before stated, previous to the act of 1820, fractional sections could only be sold entire, and were never subdivided. See act 1796, section 2, act...