[Copyrighted Material Omitted]
Error
from Labette District Court.
ACTION
brought by James T. Finley against Adam Funk, to recover the
sum of $ 300, alleged to be due under a certain agreement
which is set out at length in the petition. The petition and
agreement are as follows:
"The
plaintiff, James T. Finley, for cause of action against the
defendant, Adam Funk, alleges that he, the plaintiff, is the
owner of the S.E. quarter of section 26, township 31, range
17, Labette county, Kansas; that the defendant was at the
date first hereinafter mentioned the owner of the S.W
quarter of said section; that for many years past there has
been a difference between plaintiff and defendant relative to
the true location of the quarter-section corner on the south
line of said section, the same being the corner marking the
south end of the dividing-line between the land owned by
plaintiff and defendant as above described, and the true
location of said line has been doubtful and uncertain, the
plaintiff as he believed rightfully claiming to own the land
up to a line running to a point equidistant from the S.E. and
S.W. corners of said section, and the defendant claiming to
own the land up to a line running to a point three rods east
of said central point, which would make his quarter-section
about six rods longer on its south line than plaintiff's
quarter-section.
"And
the plaintiff alleges that the same question as to the true
location of said quarter-section corner existed between J. B.
Swart and H. Bouton, land-owners in the north half of section
35, lying immediately south of said section 26; that the
county surveyor of said county, pursuant to notice received
from said J. B. Swart, had notified all of said parties that
on the 12th day of June, 1884, he would establish said
corner; that at the time named all of said parties were
present, and said Swart and Funk had made and submitted to
said surveyor certain affidavits, and the plaintiff and the
said Bouton had submitted a portion of their evidence, when a
difference arose as to the right of plaintiff and Bouton to
have inspection of the affidavits submitted by Swart and
Funk, the plaintiff claiming the right to look at said
affidavits, and the surveyor refusing them permission to do
so; that thereupon plaintiff and Bouton refused to proceed
further with their evidence before said surveyor, and stated
that they would appeal from any report thereof which said
surveyor might make adverse to their interests; that
thereupon all of said parties agreed to dispense with the
services of said county surveyor in establishing said corner,
and as a means of avoiding all difficulties and litigation
concerning the location of said corner, entered into and
executed the written agreement, a copy of which is hereto
attached, marked 'A,' and made a part hereof; and
said corner-stone was thereupon by said parties located and
established in conformity with said agreement, and defendant
Funk has ever since been in the quiet and undisputed
possession and control of the strip of land described.
"And
plaintiff alleges that said county surveyor computed the
quantity of land for which defendant agreed to pay as
aforesaid, and the same amounted to 2 1/2 acres, and there
were and are in fact two and one-half acres in said strip;
that plaintiff has in all respects on his part complied with
the provisions of said agreement, and in pursuance thereof,
selected an arbitrator to value said land as agreed, and the
defendant also selected one, but afterward the defendant
wrongfully and without cause induced the arbitrator selected
by him to refuse to act in the matter, and since then the
defendant has refused to select another arbitrator, and has
notified plaintiff that he will not submit the valuation of
said land to arbitration as provided by said agreement, and
that he will not pay for the same, and has ever since refused
to pay for said land or to submit the question as to the
value thereof to arbitration as agreed, though often
requested by plaintiff so to do, all to the great damage of
plaintiff in the sum hereinafter named.
"And
plaintiff alleges that on the 30th day of June, 1884, said
county surveyor filed in the office of the register of deeds
in and for said county, a plat and notes of said survey
establishing said quarter-section corner at the point agreed
upon, the same as if said corner had been established by him
upon the evidence instead of upon the agreement of the
parties as aforesaid, and by reason of the facts hereinbefore
set forth, no appeal has been taken therefrom; that the value
of the land in said strip for which defendant agreed to pay
as aforesaid, is, and was at the date of said agreement, not
less than $ 300.
"Wherefore,
plaintiff asks judgment for the sum of $ 300, together with
interest and costs."
"A."
"Articles
of agreement between J. B. Swart, owner of the N.W. quarter
of section 35, township 31, range 17, Labette county, Kansas,
and H. Bouton, owner of the west half of the N.E. quarter of
the same section; and J. T. Finley, owner of the S.E.
quarter, and Adam Funk, owner of the S.W. quarter of section
26, township 31, range 17, in said county and state,
witnesseth:
"Whereas,
there has heretofore been a dispute and question about the
location of the quarter-section corner common to the land
described on the line between said sections 26 and 35; now it
is agreed that --
"1.
Said quarter-section corner of said line between said
sections 26 and 35 shall be, and hereby is, forever
established on a line with the hedges dividing the land of
said Swart and Bouton and Funk and Finley.
"2.
Said Swart shall pay to said Bouton the value of the strip of
land lying west of the hedge between the said lands of said
Swart and Bouton, and east of a line drawn or extended
southerly from a point this day by actual measurement, found
to be equidistant between the N.E. and N.W. corners of said
section 35, toward the quarter-section corner in the south
line of said section.
"3.
Said Funk shall pay to said Finley the value of the strip of
land lying west of the hedge between the land of Funk and
Finley, and east of a line extended northerly from the point
this day ascertained to be equidistant from the S.E. and S.W.
corners of said section 26, toward the quarter-section-corner
on the north line of said section.
"4.
All parties agree that the county surveyor shall compute the
quantity of land in each of the strips described, and the
value thereof shall be fixed by three disinterested
arbitrators, one to be chosen by Swart and one by Bouton, and
the two to choose a third, for the land in section 35; and
one to be selected by Finley and one by Funk, the two so
chosen to select a third, for the land in section 26; one set
of arbitrators may value the land in each section, if agreed;
and all parties hereby agree to abide the decision of said
arbitrators, and said Swart and Funk agree to pay the amount
of their respective awards within ten days from the date of
such award. Arbitrators to be selected within ten days from
the date hereof. The parties to whom said awards are to be
paid as above provided may declare this contract void as far
as it affects them, unless said awards are paid as above
provided, or they may enforce said awards by any proceedings
necessary to collect the same.
"Dated
this 11th day of June, 1884.
[Signed]
J. B. SWART.
ADAM
FUNK.
JAS. T.
FINLEY.
H. X
BOUTON, (his X mark)."
The
defendant filed an answer, to which the plaintiff replied. At
the trial of the cause at the November Term, 1883, the
defendant objected to the introduction of any evidence under
the petition, on the ground that it did not state facts
sufficient to constitute a cause of action. This objection
was sustained, and judgment rendered in favor of the
defendant for costs, to which ruling and judgment an
exception was taken by the plaintiff, who brings the case
here for review.
Judgment reversed.
