Campbell v. Clark

• Decision Date: 31 January 1844
• Citation: 8 Mo. 553
• Parties: CAMPBELL v. CLARK.
• Court: Missouri Supreme Court

8 Mo. 553

CAMPBELL

v.CLARK.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM RAY CIRCUIT COURT.

LEONARD, for Appellant. 1. The testimony of H. McAfferty, which was offered by the plaintiff, and rejected by the court, ought to have been received. 2. The instruction asked by the plaintiff, as to the boundaries of the half quarter section of land in dispute, were in conformity with the opinion of this Court, given when the case was last before this Court. Campbell v. Clark, 6 Mo. R. 221. 3. The instructions given by the Circuit Court, in lieu of the instructions asked by the plaintiff, were manifestly in tended to induce the jury to find against the rule of law applicable to the case laid down by this court, and so far as they are at all intelligible, are in direct hostility to that rule. 4. The finding of the jury is palpably against the evidence, and therefore the court erred in refusing the plaintiff a new trial.

KIRTLEY, for Appellee. 1. A purchaser, of the general government, of a less quantity of land than a section, there being other purchasers and owners in the same section, should be entitled to an equal quantity of land with all others in the same section purchasing a like aliquot part. 2. A purchaser buying of the government--or deriving title from purchasers of the government--for a half quarter section of land, should be entitled to one-eighth of the whole section, whether the government surveyor had placed the half-mile marked trees on the exterior lines of such section at equi-distance from the marked corners or not. Walters v. Commons, 2 Porter's Ala. R. 38.

SCOTT, J.

This was an action of ejectment brought by Campbell against Clark, in which Clark had a verdict and judgment. It appears that Campbell was the owner of the east half of the southwest quarter of section 21, township 49, range 28; and that Clark was the owner of the west half of the south east quarter of the same section. The division of the section, by a line running from one of the corners established by the public surveyor to the opposite corner, makes the half quarter section of Campbell contain 94.41 acres, and that of Clark's, 64.41 acres. The question is as to the manner of subdividing the sections-- whether the corners marked on the boundaries of sections by the public surveyor are to be regarded in subdividing a section among the several owners, or whether the same is to be divided by lines equi-distant from the several corners of the sections?

In making a survey of the twenty-first section, the surveyor reports, that in running the west line at 40 chains, he stopped and examined for quarter section corners, and found trees agreeing with the original field notes with the usual marks of quarter section corners, but neither the courses nor distances agreeing with the original field notes. Course continued 40 chains, making in all 80 chains, which brought him to a prairie. No sign of the original post or mound was to be seen. Thence east, and at 40 chains, found himself to be 20 1/2 links south of the old marked line. He then moved on to the old marked line, and searched for the quarter section corner, but could find no timber, either in the course or distance of the description called for in the field notes. Course continued 5 chains, 4 3/4 links, where a Spanish oak, lying down and much decayed, was found, bearing S. 61 deg., E. 50 links; also, a white oak lying down dead, bearing N. 55 1/2, W., 48 links. Course continued 34 chains, 94 1/4 links, making in all 80 chains--which brought him into an old improvement; no bearing trees to be found; all the timber having been destroyed in making the improvement, or by other means. Thence, north, his course exactly striking and following the old marked line, and at 79 chains, 56 links, he came to the beginning corner, falling about two feet west of it.

The original field notes of the survey of the south line of the said section, about which this controversy arises, called for post in mound, at the western corner. The witness trees of the middle corner were Spanish oak, 18 inches in diameter, bearing S. 61 deg., E. 50 links distant, and a white oak, 16 inches in diameter, bearing N. 42 deg. W. distant 40 links.

Many witnesses were introduced by the plaintiff, who, beyond all controversy, proved the fact that the corner claimed by Campbell was the corner established by the original surveyor of the lands, under the authority of the United States. A block from one of the witness trees to the middle corner of the south line of the section, which appeared to be of burr oak, was exhibited to Hugh McAfferty, a chain-carrier and marker when the section was first surveyed, who testified that he believed the marks in said block of wood to be his; that the markers were not well acquainted with the kind of timber in Missouri, and that they usually called oak timber white oak when they made their corners in oak timber, particularly what is now called burr oak, and chinquepin oak. This evidence was objected to, and excluded by the court, to which an exception was taken.

The court, when requested, refused to instruct the jury, at the instance of the plaintiff that the quarter section corners established by the surveyors under the United States were to be regarded as the proper corners of quarter sections; and that, however unequal a division of a section might be made, by running dividing lines from these corners, yet they must be adhered to; and instructed the jury, at the instance of the defendant, that they were to take the field notes in evidence, showing the length of the south boundary line of section 21, as being the true length of the line; and further, they are to take the field notes in evidence, as their guide in ascertaining the point equi-distant between the section corners, to ascertain the half-mile corner; and if they believe the half-mile corners do direct and point them to a point mid-way of said section line, as the place designated by the surveyor of the United States as the half-mile corner, there they should place it; and the presumption of law is, that the surveyor placed said corner where the law required him to put it, and if the bearing trees of said half-mile corner cannot be found as designated in the field notes, they should disregard any trees purporting to be bearing trees of said corner, which may be found on the south line of said section, which are placed 20 poles east of the middle or centre of said line.

This case was once before in this court, 6 Mo. R. 219, and it appears the same question was then involved which is now submitted to our consideration. We have no hesitation in pronouncing our conviction of the correctness of the opinion heretofore given in this cause, and are satisfied that although the law...