Carter v. Hornback
| Decision Date | 25 May 1897 |
| Parties | Carter, Appellant, v. Hornback |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. W. M. Robinson, Judge.
Reversed and remanded.
Harrison & Harrison for appellant.
(1) The court erred in excluding the re-survey signed "E. Lloyd Deputy County Surveyor," made and recorded in 1870. G S. 1865, sec. 19, p. 164; R. S. 1889, sec. 8320. Surveys made by county surveyors or their deputies shall be considered legal evidence in any court in this State. G. S. 1865, sec 11, p. 163; R. S. 1889, sec. 8312. (2) It was shown by surveyor Edwards and others that E. Lloyd was deputy county surveyor. And it was shown by defendant Sam Hornback and his brother, John Hornback, that Lloyd's survey was by mutual consent of the parties then interested. Therefore, the excluded record was admissible as competent evidence to show the corner for the two reasons. R. S. 1889, sec. 8312. (3) Courts will take judicial notice of the civil officers in the counties in which they hold their sittings and of the genuineness of their signatures and of those of such deputies as the law authorizes. 1 Rice on Ev., p. 25; People v. John, 22 Mich. 460. (4) The presumption is that the county surveyor recorded the survey made by E. Lloyd his deputy as the law directed as it is properly recorded in the record by him required to be kept. Lyttle v. Arkansas, 9 How. 333; Gibson v. Chouteau's Heirs, 39 Mo. 536. (5) The court improperly, over the objection of plaintiff, allowed surveyor Edwards to testify what effect running that quarter section line from the north line of the section starting at the point established or found to be the government corner by E. Lloyd would have on the measurement in area; because it was intended to show a mistake made by the United States surveyor in locating the corner. Corners established by the United States surveyor on public lands are conclusive as to actual location and as to the boundary line of sections and subdivisions thereof as authorized by law. Climer v. Wallace, 28 Mo. 556. (6) The practice of singling out instructions, specific acts, and asking the court to say as a matter of law, that if the acts were established your finding will be for the defendant, is not permissible. Meyer v. Railroad, 45 Mo. 137; State v. Smith, 53 Mo. 267; Spohn v. Railroad, 87 Mo. 74. (7) So long as the monuments placed on the earth's surface by the United States surveyors can be identified, there are no lost corners, and they control, no matter what more recent surveys, by courses and distances, disclose. Jacobs v. Moseley, 91 Mo. 457; The Mayor of Liberty v. Burns, 114 Mo. 426; Whitehead v. Ragan, 106 Mo. 231.
McReynolds & Halliburton for respondent.
(1) The court did not err in excluding the record of the survey made by E. Lloyd, because said record of survey did not purport to be the act of any surveyor, but purported to be the act of E. Lloyd only, being signed "E. Lloyd, Deputy County Surveyor." (2) There is no dispute of the proposition that corners established by the United States surveyors on public land are conclusive as to actual location. But it is well settled that where the monuments established by United States surveyors can not be found and there is a dispute as to the location of a corner or corners, then courses, distances, and area as given by the field notes of the United States survey control. Whitehead v. Ragan, 106 Mo. 235. (3) There was a dispute in the evidence as to where the quarter section corner between sections 19 and 30 had been located by the United States surveyors, and there are no monuments left that were put in by or marked by United States surveyors, and that was the main question at issue and to which all of the evidence was directed. So that the case was properly submitted under the instructions. Mayor of Liberty v. Burns, 114 Mo. 426. (4) The instructions on the statute of limitations fairly state the law and cover the case as made by the evidence and are correct. It is a well settled rule in this State that in passing upon the instructions in a case they must all be read together and if by so reading they properly declare the law they will be sustained. Taking the instructions given and reading them together the court will find the law properly declared. State ex rel. Robertson v. Hope, 102 Mo. 426; Owens v. Railroad, 95 Mo. 169; Bank v. Hatch, 98 Mo. 376; Dougherty v. Railroad, 97 Mo. 647. (5) The true location of a survey is not one of construction nor a question of law, but of fact; and whether a particular piece of land is included within the boundaries mentioned, if these are in dispute, is a question for the jury. Grant v. Moon, 128 Mo. 43-49.
Ejectment for a strip of land lying east and west, fifty-eight feet in width at the south end, one hundred and five feet in width at the north end, and thirteen hundred and seventy-three feet in length, in section 30, township 28, of range 31, in Jasper county.
Plaintiff is the owner of the north half of lot 1 of the southwest quarter, and the defendant is the owner of the north half of lot 2, of the southwest quarter of said section.
Plaintiff claims that the land in question lies east of the dividing line between the north half of lot 1 and the north half of lot 2 while defendant contends that it lies west of that line.
The rights of the parties turn chiefly upon the true location of the northeast corner of the northwest quarter of said section thirty, as originally located by the government survey.
The evidence was conflicting as to the location of that corner. The evidence upon the part of the plaintiff tended to show the location of the quarter section corner upon the north line of said section 30, to be two thousand, seven hundred and seventy-four feet east of the northwest corner of said section, while the evidence upon the part of defendant tended to show that it was one hundred and sixty rods west of the northeast corner of said section.
Upon plaintiff's theory of the case he was entitled to judgment for the possession of the land, unless his action was barred by the statute of limitations, at the time of the institution of this suit. As tending to show that plaintiff's action was barred by the statute of limitations, defendant proved that for more than eight years before the commencement of the suit he inclosed the land in litigation by a fence, and that prior to that time he cut firewood and made rails upon it, and cleaned it up preparatory to cultivation.
There was judgment for defendant, from which plaintiff appeals.
Upon the trial plaintiff offered in evidence what purported to be the "Record of Surveys of Jasper county, Missouri," and particularly a resurvey therein numbered 71. Defendant objected to the introduction of this survey in evidence, upon the ground that it did not purport to have been made by the county surveyor of said county, and was not signed by him, but was signed "E. Lloyd, Deputy County Surveyor." The objection was sustained, plaintiff saved his exceptions and assigns for error the ruling of the court in excluding the record of the survey from the consideration of the jury.
By section 8320, Revised Statutes 1889, section 7390, Revised Statutes 1879, authority is given to any county surveyor to appoint deputies, but it is a well settled rule of law that all official acts done by a deputy must be done in the name of the principal. "A deputy is one who, by appointment, exercises an office in another's right, having no interest therein, but doing all things in his principal's name, and for whose misconduct the principal is answerable." 5 Am. and Eng. Ency. of Law, 623.
As the survey was not made in the name of the...
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