Daniel v. Florida Ind. Co.
| Decision Date | 17 November 1932 |
| Citation | 159 Va. 472 |
| Parties | W. F. DANIEL v. FLORIDA INDUSTRIAL COMPANY. |
| Court | Virginia Supreme Court |
Present, Holt, Epes, Hudgins, Gregory and Browning, JJ.
1. BOUNDARIES — Survey of Public Lands — "Government Section" or "Government" Subdivision — Section Corner Placed by Government Surveyor Conclusive — Conflict between Lines Marked on the Ground by Surveyor and Government Map or Surveyor's Field Notes. — A survey of the public lands of the United States does not describe boundaries, it creates them. A "Government section" or other "Government" subdivision is the land lying within the lines of that section or subdivision as surveyed and marked upon the ground by the Government surveyor. This is true, even though due to some mistake made by him the surveyor ran and marked the lines on the ground otherwise than as was required by the rules and regulations of the Government, or as called for in his field notes. If the point at which a section corner was placed by the Government surveyor or the line marked by him as a section line is satisfactorily established, it is conclusive as to the location of the corner or line, though the location of the corner or line does not accord with that corner or line as shown on the Government map of the subdivision, or with that called for by the field notes of the surveyor who made the survey on which the Government map is based.
2. BOUNDARIES — Government Land — Field Notes and Government Plats Presumed to Be Correct. — The field notes nad Government plats made by the Government surveyors at the time public lands were originally surveyed are presumed to be correct; and they are determinative of the true location on the ground of the corners and lines therein called for, until it is shown by clear and convincing evidence that the corner or line in question was in fact established on the ground by the Government surveyor at a place other than that called for by the field notes and plat of the original survey. Especially is this true where the field notes call for the location of the corners and lines substantially as the law directs that they shall be established.
3. BOUNDARIES — Government Lands — Lines of Subdivision as Marked on the Ground Determine Boundary — Case at Bar. — In a deed between private parties where the land conveyed was a part of the public lands of the United States and is described and designated only as a certain section, or other Government subdivision in a designated township and range, without any other description, it means that "Government section" or other "Government subdivision," and in determining the lines of the land thereby conveyed the same rules apply that apply in determining, as against the Government, the lines of a section, or subdivision thereof, which has been conveyed by it. The lines of the subdivision as marked on the ground at the time of the original Government survey, when satisfactorily established, determine the lines of the land conveyed, whether they accord with the Government map or the field notes of the survey or not. As between the parties to a deed this rule is subject to some exceptions, as, for instance, where it is shown that there was a mutual mistake as to the location of the lines of the Government subdivision. But the instant case did not fall within such exceptions.
4. BOUNDARIES — Government Survey — Overcoming Presumption that Surveyor's Field Notes Are Correct — Case at Bar. — The instant case was an action by plaintiff upon three purchase-money notes. Defendant put in a plea of set-off in which he alleged that as to a part of the land conveyed to him by plaintiff's deed, plaintiff had lost title through the adverse possession of other persons. Plaintiff replied that the part of the land in question was not conveyed or intended to be conveyed in its deed to defendant. For defendant to sustain his plea of set-off, the burden was upon him to prove that the Government surveyor in fact established the southern corners of section 1, the Government section in which the land conveyed lay, and ran the south line of the section south of the corners and line called for by his field notes. The evidence introduced by the defendant for this purpose fell short of that clear and convincing evidence, which is, as a matter of law, required to overcome the presumption that the Government surveyor's field notes correctly described the corners and lines of section 1 as run by him, and that he correctly located and identified the corner set up for the southeast corner of section 1.
Held: That the evidence was insufficient to support a verdict finding that the Government surveyor established the corners of the section and ran the south line thereof on the ground substantial distances south of the corners and line called for by his field notes.
Error to a judgment of the Circuit Court of Washington county, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.
The opinion states the case.
Henry Roberts, for the plaintiff in error.
L'Engle & Shands and Robert L. Pennington, for the defendant in error.
This is an action, instituted by a notice of motion for judgment, brought by Florida Industrial Company, a corporation, against W. F. Daniel to recover the balance due on three notes for $8,797.19 each, which were given that company by Daniel for the deferred installments of the purchase price of fractional section 1, township 43 south, range 29 east, and lots three and four in fractional section 6, township 43 south, range 29 east, in Hendry county, Florida which were conveyed by it to Daniel by a deed dated September 14, 1925.
Daniel's defense is a plea of set-off in which he alleges that the land shown on the diagram, which we have inserted, as the area K X Y C, containing seventy-eight acres, is in section 1, township 43 south, range 29 east; that Florida Industrial Company had lost title to this seventy-eight acres through the adverse possession of other persons and that he is entitled to have the value thereof at the time of his purchase of section 1 set-off against the demand of the plaintiff.
Space forbids the insertion of a plat covering all the territory to which reference is made in the evidence; and the diagram inserted shows in their entirety only sections 1 and 12. On this diagram the section lines called for by the Government map and field notes are shown as solid lines. The north and south lines and the east and west lines, shown as broken lines, denote lines which the defendant claims were run on the ground by the surveyor for section lines, though the locations thereof do not accord with his field notes.
The reply of Florida Industrial Company is that the area K X Y C lies in section 12, not in section 1, and was not conveyed, or intended to be conveyed, in the deed from it to Daniel.
Florida Industrial Company introduced in evidence the three notes sued upon, which had endorsed thereon certain credits for sums paid to it by Daniel, the purchase money mortgage given to it by Daniel to secure the payment of these notes, and a written agreement, dated September 14, 1926, between it and Daniel by which the time for the payment of the balance due on the first note was extended to September 14, 1929. It then rested.
All other evidence was introduced by Daniel, or brought out on the cross-examination of witnesses introduced by him, or consisted of depositions, which though taken by Florida Industrial Company, were read in evidence by Daniel.
At the conclusion of the evidence for the defendant the court sustained the motion of the plaintiff to strike out all of Daniel's evidence. The ground of this motion was, in effect, that as a matter of law it was insufficient to sustain a verdict finding that the land within the area K X Y C is included in the land conveyed by Florida Industrial Company to Daniel.
The jury returned a verdict for the plaintiff for an amount which is correct, unless the defendant is entitled to the setoff pleaded by him in his plea above mentioned. The court entered a judgment on this verdict, to which judgment the defendant has been granted a writ of error.
The primary assignment of error is that the court erred in sustaining the motion to strike out the defendant's evidence. If the court was correct in this ruling, the other assignments of error are without point.
These Florida lands were a part of the public lands of the United States, and were subdivided and disposed of by it to private persons. The United States statutes prescribing rules for surveying and for ascertaining the boundaries and contents of subdivisions of the public lands have remained unchanged in any particular here material from long prior to 1872 to the present time. See sections 2395-2396, Revised Statutes U.S. 1878; U.S. Code Ann. (1928), Title 43, Public Lands, sections 751-752. The pertinent parts of sections 751-752, U.S.C.A., Title 43, Public Lands, are quoted in the footnote.1 We note below the rules of law which have been laid down by the courts relating to what constitute Government subdivisions of the public lands, and to ascertaining the boundaries thereof.
A survey of the public lands of the United States does not describe boundaries, it creates them. Cox Hart (Cal. 1922), 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332. A "Government section" or other "Government" subdivision is the land lying within the lines of that section or subdivision as surveyed and marked upon the ground by the government surveyor. This is true, even though due to some mistake made by him the surveyor ran and marked the lines on the ground otherwise than as was required by the rules and regulations of the government, or as called for in his field notes. It the point at which a section corner was placed by the government surveyor or the line marked by him as a section line is satisfactorily...
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