Fink v. Dawson

• Decision Date: 18 November 1897
• Docket Number: 7523
• Citation: 72 N.W. 1037,52 Neb. 647
• Parties: LEWIS FINK v. JOHN L. DAWSON
• Court: Nebraska Supreme Court

72 N.W. 1037

52 Neb. 647

LEWIS FINK v. JOHN L. DAWSON

No. 7523

Supreme Court of Nebraska

November 18, 1897

ERROR from the district court of Gage county. Tried below before BABCOCK, J. Reversed.

REVERSED.

Alfred Hazlett and Fulton Jack, for plaintiff in error.

E. N Kauffman, contra.

OPINION

NORVAL, J.

This cause originated in the district court of Gage county on the 2d day of January, 1893, to recover possession of a strip of land in the southwest quarter of section 30, township 2 north, of range 7 east, 1.04 chains in width at the east end of said strip, 2.19 chains in width at the west end, and 160 rods long. From a verdict and judgment for plaintiff defendant has brought the record to this court for review.

The plaintiff below, John L. Dawson, is the owner of the north half of said quarter section, and Lewis Fink is the owner of the south half of the same quarter section. The controversy is over the location of the original government corners, which mark the boundary line dividing the north and south halves of the southwest quarter of said section 30, and whether the defendant had held adverse possession of the strip in dispute continuously for ten years immediately prior to the bringing of this suit. The testimony adduced on the trial relating to the location of the government monuments in question was, as is usual in cases of this character, exceedingly conflicting. The testimony of the defendant was to the effect that he had possession of, and cultivated, all the strip now in litigation since 1888, and at least one-half thereof since 1881.

Error is predicated upon the giving of the following instruction at the request of plaintiff below:

"The jury are instructed that the boundary lines of lands are determined from the location of the original stakes and corners by the government surveyors, and that these stakes and corners control the location, course, and distances of boundary lines, and that these lines are not subject to change or correction by subsequent surveys by county or private surveyors. And if you find that the government surveyor located the corners at the point contended for by plaintiff, you must find for the plaintiff."

By the foregoing the only issue presented to the jury for determination was the exact location, by the government surveyor, of the boundary line between the north and south half of the southwest quarter of said section 30. If they ascertained...