Dobberstein v. Emmet Cnty.

• Decision Date: 11 January 1916
• Docket Number: No. 30453.,30453.
• Citation: 155 N.W. 815,176 Iowa 96
• Parties: DOBBERSTEIN v. EMMET COUNTY ET AL.
• Court: Iowa Supreme Court

176 Iowa 96

155 N.W. 815

DOBBERSTEIN

v.EMMET COUNTY ET AL.

No. 30453.

Supreme Court of Iowa.

Jan. 11, 1916.

Appeal from District Court, Emmet County; D. F. Coyle, Judge.

Action to establish disputed corners and boundary lines. There was a judgment for plaintiff, and within a year thereafter the defendants filed a petition for new trial, which was denied, and defendants appeal. The facts, so far as they are material upon this appeal, are stated in the opinion. Reversed and remanded.Francis & Owen, of Spirit Lake, and Byron M. Coon and Morse & Kennedy, all of Estherville, for appellants.

C. W. Crim, of Estherville, and E. A. & W. H. Morling, of Emmetsburg, for appellee.

WEAVER, J.

The principal corner over which this litigation has arisen is the common corner of sections 7, 8, 17, and 18, township 100, range 34, in Emmet county. Plaintiff owns the north half of section 18, and the defendants (except Emmet county) own respectively other tracts of land affected in some degree by the location of that corner. The county is made a party because of the fact that a public road is laid east and west along the line between sections 7 and 18, and another road is also laid north and south between sections 18 and 17. On the petition of plaintiff a commissioner was appointed to make a survey, locate the corner, and report his findings to the court. The defendants appeared to the proceeding, denied the plaintiff's claim that the corner was located elsewhere than at the point indicated by the present occupation and use of the lands at that point, and alleged that the corners and lines as claimed by them had been recognized and acquiesced in by all the adjacent owners for more than 10 years. The commissioner made the survey and heard evidence, as to the location of the ancient monuments as well as of facts bearing upon the question of acquiescence, and reported to the court, in substance, that while a present survey re-tracing the lines according to the government field notes from other acknowledged corners would indicate the true original location of the disputed common corner to be north and east of the spot claimed by the defendants, yet that such spot had been acquiesced in by all the owners of land affected by such location as the true corner, and that such owners had adjusted their lines, fences, and improvements with reference thereto for more than 15 years, and such practical location should be considered established by acquiescence, without regard to the variations therefrom which might be developed by a strict technical survey according to such data of the original measurements as are now obtainable. Exceptions being taken to this report, a trial thereon was had to the court, which disapproved the finding of the commissioner that the corner and lines had been established by acquiescence and ordered that the corner be established at the point mentioned by the commissioner north and east of the present corner. This order or decree was entered on February 15, 1913, and, though a notice of appeal seems to have been served by the defendants, it was withdrawn pending the disposition of the petition for new trial which was filed by defendants in August, 1913. In support of the demand for new trial, the petition sets out the substance of the controversy and claims of the respective parties and a more or less complete recitation of the testimony produced on the trial. It is then alleged that since said trial new, material, and important evidence has been discovered tending to show that the judgment was rendered upon a mistaken conclusion as to the facts, and that there is no sufficient support for the claim asserted by the plaintiff. The showing so made is to the effect that upon said trial the evidence tended to establish the fact that the land in and about the neighborhood in question had been settled for a period of 40 to 50 years; that the government mounds and marks of the original survey had long since disappeared; that fences had been built, roads laid and improved, trees and hedges planted, buildings erected, and lands occupied with reference to what was believed to be the true lines and corners without controversy and with general acquiescence of all concerned until some 9 years or more after plaintiff had come into possession of the north half of section 18, when he, believing that the true common corner was north and east of the corner which was then being recognized by the adjacent owners, began this proceeding. Of necessity, living witnesses who could speak from memory and personal observation of the exact location of the original monuments were few, and much reliance had to be placed upon evidence of a merely circumstantial character. Plaintiff, however, discovered that one Holm, who was the first occupant of the southeast quarter of section 18, a half mile south of the disputed corner, was still living in the state of Minnesota and produced his attendance as a witness. He testified that he left the neighborhood in 1871, something over 40 years before, and never revisited it until immediately before the trial. He had looked the ground over and said he found the present grade of the road between sections 17 and 18 some six rods west of the line upon which it was laid and used during the time he lived there. According to his recollection, the stake marking the common corner of the four sections was north and east of the corner now used and recognized. The circumstances on which he depended as fixing in his mind the location of the road between sections 17 and 18 was that, while he was living on section 18, his child about 18 months old died, and the body was buried near his house and inside his road fence some six rods from the highway. On revisiting the place just before the trial, he found the house had been removed, and there was no visible sign of his former residence there; but he found what he claimed to recognize as the child's grave within the bounds of the highway as at present laid out and used. It was not marked by any stone or monument of any kind, but there was a depression in the surface of the ground which convinced him that it was in fact the child's grave, and from that as a starting point he placed the location of the road and the quarter corner between sections 17 and 18, as they existed when he lived there, at points corresponding with the present claim of the plaintiff.

It is the theory of appellants that this testimony of the witness Holm was quite influential in determining the result of the trial. They further say the production of the evidence of this witness was a surprise to them, and that their opportunity to investigate the facts and rebut the testimony was very limited and insufficient to permit the same to be done in time for use in such trial or in time for filing the ordinary motion for new trial; that, immediately after said trial, they did investigate diligently, and thereby discovered with reasonable certainty that Holm was mistaken in supposing that he found the grave of his child within the limits of the present highway, and also mistaken concerning the location of the house which he occupied on section 18; and that in fact the real location of the grave and of the place where the house stood is several rods west of the highway, and there has been no change in the location of the section line or highway since the date of which the witness undertook to speak. On the hearing upon the petition for new trial, the attorneys for appellants testified to various...