Campbell v. Wood
| Decision Date | 24 May 1893 |
| Parties | Campbell, et al., Appellants, v. Wood, et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
Affirmed.
Beardsley & Gregory for appellants.
(1) The court had no right to go behind the survey and plat and patent, and find the intention to convey any other land than that identified and described by such survey, plat and patents. Gazzan v. Phillips, 20 How. 372. (2) The acts of congress controlling this case are as follows: Act of February 11, 1805, ch. 14, p. 313, 2 U. S. Statutes at large; Act of April 24, 1820, ch. 51, p. 566, 3 U. S. Statutes at large. (3) The corners actually located upon the ground by the survey as metes and bounds, established by the plat control the reference to the amount of land named in the patent of 1831. Amount is the least certain and last to be considered. Morrow v. Whitney, 95 U.S. 556; Olrich v. Bowen, 29 Mo. 214; Carter v Kane, 22 How. 1; Pernan v. Weed, 6 Mass. 131; Offerd v. Wilkins, 33 La. Ann. 110; McClintock v. Rogers, 11 Ill. 229; 2 Devlin on Deeds [1 Ed.], sec 1044; McEvoy v. Loyd, 31 Wis. 142. (4) The same rule governs in the construction of a patent as in the case of any other conveyance of land. Rogers v. Brent, 5 Gilm. (Ill.) 573. (5) The law makes no distinction in dignity betwen the township lines, section lines or half section lines; and where the description in the conveyance is certain in its terms, one line can no more easily be disregarded or crossed over than the other. Martin v. Carlan, 19 Wis. 454; Palmer v. Dodd, 31 N.W. 209. (6) The surmise of the intention of the government to have included the northeast quarter with the southeast quarter in the patent of 1831, cannot prevail against the certain description contained in the patent. McAfferty v. Conover, 7 Ohio St. 104; Richardson v. Curtis, 33 Ohio St. 379. (7) Parol evidence was not admissible to explain the government plat.
C. O. Tichenor for respondents.
(1) The instructions of the secretary to the surveyor general directed that he should not run the line by which he divided a fractional section, but that he should simply mark it on his plat and then calculate the quantity in each subdivision. See the letter in Brown v. Clements, 4 Ala. 133. So then there was to be but one dividing line in a fractional section. The plat does not show the law was violated, for it shows on its face that the little corner has no acreage marked on it, but only a line with the two cross marks on it, so the plat then shows that this little piece was either surveyed in and as a part of the southeast quarter, or that it was not surveyed at all. Turner v. Railroad, 112 Mo. 542. (2) We do not contend that we have a right to go behind the survey, plat and patent so as to find an intention to convey land not identified by the survey, plat and patent. We do contend that when the plat contains that which no one but a surveyor can explain, that then we have the right to seek information from those who can tell. These peculiar marks mean something and we have a right to find out and have found out by expert testimony their meaning. This was proper. Cummings v. Powell, 97 Mo. 532; Knox v. Clark, 123 Mass. 216; Davis v. Mason, 4 Pick. 158; Blumenthal v. Roll, 24 Mo. 113; Stevens v. West, 6 Jones L. 53.
-- Ejectment to recover possession of the northeast fractional quarter of section thirty-two, township fifty, range thirty-three, Jackson county, Missouri. Plaintiffs claim title under a patent issued by the United States in 1870 to David T. Campbell and Reuben H. Thurston. Thurston subsequently conveyed to Baker. Defendants claim through a patent issued by the United States to Gabriel Predom for the southeast fractional quarter of same section, township and range south of the Missouri river containing 157 16-100 acres, according to the official survey. The patent is dated February 1, 1831. Defendants claimed and the court so held that the land embraced in the Predom patent covered the land in the said patent of March 1, 1870.
EXHIBIT "A"
[SEE EXHIBIT IN ORIGINAL]
Defendants read in evidence a certified copy of a plat of said fractional township 50, according to the government survey, as the same appears of record in the register's office at Jefferson City, Mo.; and also a certified copy of the plat of said township from the department of the interior at Washington. The maps are the same, excepting some memoranda which do not bear on the controversy; the Jefferson City plat shows an island (surveyed in December, 1857,) which does not appear on the other plat. See annexed map:
The field notes of the original government survey of this land show that the surveyors began at the southeast corner of the section and ran north forty chains, and there set a quarter section post; from that they ran on, four chains more, to the bank of the Missouri river, and there set a post for a meander line. They then ran the west line of the section. That part of the section thus lying south of the Missouri river contained 271.93 acres. From the center line of the section on the south, the government plat shows the surveyor-general drew a straight line due north to the Missouri river; and from the quarter corner on the east line of the section, established by the surveyor on the ground, forty chains north of the south east corner of the section, the surveyor-general drew a due west line to the Missouri river. Across this last line, upon the government plat appear two little cross lines, and upon the plat on the east half of this fractional section, only one acreage is noted, and that is 157.16 acres, noted on the southeast quarter; 114.77 acres is noted as the area of the southwest fractional quarter.
At the trial, the defendants were permitted, over the objection of the plaintiffs, to introduce parol evidence of local surveyors to show the meaning of the two lines above referred to. Several surveyors testified upon this point; some of them that these lines indicated that the acreage, written upon the southeast quarter of the plat, covered the two pieces of land north and south of the line running east and west from the quarter of the Missouri river; others, that they were in effect an obliteration of the line.
It is the contention of the defendants that a reference to the government plat shows that the southeast quarter contains this triangular piece of land in dispute. On the other hand, plaintiffs contend that, while it is true that the government plat and survey are referred to in each patent, and under decisions of the United States are to be held as part of the same as though copied therein, yet the facts in this case show that the surveyor upon the field actually placed a quarter corner on the east section line, and that the surveyor-general, in making his plat, ran the half section line west from this corner to the Missouri river, and that there were, in 1831, the date of the first patent, upon the plat, and by the survey, established and made two fractional quarter sections, the one south and the other north of a line drawn west from this quarter-corner on the east line of the section.
Defendants and their grantors had been in the actual possession of the land for more than ten years before the commencement of the suit. No instructions were...
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