Dowdle v. Cornue

• Decision Date: 29 July 1896
• Citation: 68 N.W. 194,9 S.D. 126
• Parties: DOWDLE v. CORNUE et al.
• Court: South Dakota Supreme Court

9 S.D. 126

68 N.W. 194

DOWDLE

v.CORNUE et al.

Supreme Court of South Dakota.

July 29, 1896.

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action by Henry Dowdle against Edgar E. Cornue and others to restrain them from opening a highway on a section line. From a judgment in favor of defendants, plaintiff appeals. Affirmed.Davis, Lyon & Gates, for appellant. Palmer & Rogde (Hosmer H. Keith, of counsel), for respondents.

CORSON, P. J.

This was an action to restrain the defendants, as township officers, from opening a highway on a section line as established by the county surveyor in accordance with the original government field notes of the original survey. The findings and judgment were in favor of the defendants, and the plaintiff appeals.

Appellant does not question the correctness of the county surveyor's survey as not having been made in conformity with the original government field notes, but he contends that the government mounds, established by the government surveyor to mark the easterly boundary of the quarter section in controversy, were placed from 20 to 40 rods further to the east than the line as surveyed and established by the county surveyor by his official survey; and he contends that the mounds so placed by the government surveyor are controlling, as determining the true boundary of the quarter section. This last proposition is fully sustained by the decisions of this court, and, when the location of the government mounds as established by the government surveyoris ascertained, the line as indicated by such mounds must prevail. The question as to where the mounds made by the government surveyor at the time of the original survey were in fact placed is one purely of fact, and, unless there is a clear preponderance of the evidence against the findings of the trial court, its findings will not be disturbed. The evidence in this case is voluminous and conflicting, and after a careful examination of it this court cannot say that there was a preponderance of evidence against the findings of the court. The easterly section line of the S. E. 1/4 of section 5, Mapleton township, the line in controversy in this action, is a part of the first section south of the north township line. The section corner on the north township line and the section corner on the south township line seem to be recognized original government corners, and the survey made by the county surveyor connected these two established government corners by a straight line, and was presumptively correct. The burden was therefore upon the plaintiff to prove, by a preponderance of the evidence, that the mounds and stakes, which he claims were placed to mark the easterly boundary of the quarter section in controversy, were in fact placed there under the direction of the government surveyor at the time of the original survey; that is, that the mounds so claimed to be the original government mounds shall be proved to be such to the satisfaction of the court or jury. As before stated, the evidence in this case was conflicting, and a fair review of it...