Galbraith v. Parker

• Decision Date: 11 December 1915
• Docket Number: Civil 1438
• Citation: 153 P. 283,17 Ariz. 369
• Parties: W. J. GALBRAITH, Appellant, v. P. P. PARKER, Appellee
• Court: Arizona Supreme Court

153 P. 283

17 Ariz. 369

W. J. GALBRAITH, Appellant, v. P. P. PARKER, Appellee

Civil No. 1438

Supreme Court of Arizona

December 11, 1915

APPEAL from a judgment of the Superior Court of the County of Maricopa. John C. Phillips, Judge. Reversed and remanded with directions.

Messrs Struckmeyer & Jenckes, for Appellant.

Messrs Alexander & Christy, for Appellee.

OPINION

ROSS C. J.

The appellee, who was the plaintiff in the lower court, instituted this action against the defendant-appellant to recover the possession of a strip of land 726 feet in width and the length of a 40-acre subdivision. The plaintiff is the owner, without question, of the north half of the southwest quarter, and the northwest quarter of the southeast quarter, of section 25, township 1 north, range 1 east, Gila and Salt river base and meridian. The defendant is the owner, without question, of the east half of the northwest quarter of the same section. Plaintiff's land was patented in 1892 to one Noak, and the plaintiff became the owner through various mesne conveyances. Defendant's land was patented to him in October, 1913. The controversy is over where the quarter section line dividing the northeast quarter of the southwest quarter of section 25, belonging to the plaintiff, and the southeast quarter of the northwest quarter, same section, belonging to the defendant, should be. According to the plaintiff's claim, as set forth in his complaint, this dividing line is 726 feet north of where the defendant contends it should be.

This township was surveyed and platted by the United States government in 1868 or 1869, and the evidence introduced at the trial makes it clear that many of the original monuments at the time of the trial of this case had been obliterated. It was the contention of the defendant that the original field-notes and plat were the only proper evidence to be relied upon to establish the boundary line between his property and the plaintiff's.

The government's original monument marking and locating the southeast corner of the township, identical with the southeast corner of section 36, was found in place upon the ground. Starting from that point and tracing the township line which is the east boundary line of sections 36 and 25, the calls of the United States' field-notes and plat are one mile for each section. In other words, according to field-notes and plat, the northeast corner of section 25 should be two miles north of the southeast corner of section 36. No government monument was found at the northeast corner of 36 identical with the southeast corner of 25, and none was found at the quarter section corners on the east or west sides of section 25. It is admitted that townships are surveyed by the government beginning at the southeast corner of the township, and that ordinarily efforts to locate lost monuments should start with the initial point of the original survey; but in this case the plaintiff disregarded that rule by introducing evidence of monuments testified to as being original government monuments of the northeast corner and north quarter corner of section 25, and he insists that these, being found on the ground and established, should control in the ascertainment of the dividing line between his land and the defendant's. We think the evidence of witnesses who lived on section 25 for 30 to 35 years fairly and reasonably established the corners of section 25 as contended for by the plaintiff. There was, however, no evidence introduced by either the plaintiff or defendant showing the location of the east quarter section corner or west quarter section corner of section 25, a direct line between which two points should establish the dividing line between the plaintiff and defendant. As one of the attorneys for the plaintiff in the course of the trial said, "I have established there are no actual monuments," referring to monuments which should indicate the line dividing plaintiff's and defendant's land.

The Salt river runs through the southern part of section 25, and at this point widens out and covers quite an area of ground. One of the surveyors who testified for the plaintiff said:

"It has been known for a number of years that there is a mistake made in that township and made immediately north of the river; of the base line, I should say. . . . There is a gap in there in that south tier of sections, and it is probably caused by the difficulty of crossing the river. I imagine at the time of the survey the river was up and they triangulated across there and got it too short or too long."

This discrepancy or "gap" occurs somewhere between the base line and the north end line of section 25 as claimed and established by the plaintiff. We state it in the language of plaintiff's attorney:

"We don't deny the fact that, if he measured from the base line north on the east line of section 36 and 25 from the northeast corner of section 25, the two-mile measure will fall short or south 726 feet of the point that Major Ivy said he found the monument or stake and pit where the ditch turns west and turns out at the northeast corner and ran on the same way to the northwest corner."

While, according to the plaintiff's complaint, the disputed area is only 726 feet in width and the length of a 40-acre tract, witness Frank Trott, who made an actual survey of the disputed ground, describes the discrepancy as follows:

"I ran a line on the east half and the west half of sections 25 and 36 to the base line. On the east side the distance is 737 feet greater than the two miles and on the west side 755 feet. I don't know just where Mr. Galbraith's claimed line is. From the base line to the corner claimed by Captain Parker as the northwest corner of section 25 is 11,315 feet. In other words, an excess over 2 miles of 755 feet."

The case was tried to a jury, which returned the following verdict:

"We find that the plaintiff is the owner of all the land in dispute and lying south of a line running east and west between a point on the east line of section twenty-five (25), township one (1) north, range one (1) east, being a distance of 2,640 feet south of a stone at the northeast corner of said section twenty-five and a distance of 8,656 feet north of the southeast corner of section thirty-six . . . and a point on the west line of said section twenty-five, . . . being a distance of 2,640 feet south of a stone at the northwest corner of said section twenty-five and a distance of 8,675 feet north of the southwest corner of said section thirty-six. . . . "

According to the verdict of the jury, the area in excess of two miles from the base line, beginning at the southeast corner of section 36, to the northeast corner of section 25, the claimed northern boundary of said section 25, as made by the plaintiff, is 736 feet, and on the west the excess is 755 feet.

It will be seen from the wording of the verdict that the dividing line between the land of the plaintiff and defendant was tied to the closest known and ascertained government corners, to wit, the southeast and southwest corners of section 36 and the northeast and northwest corners of section 25. Whether the rule adopted in the ascertainment of this dividing line is the correct rule is the question. The law seems to be very well settled that government monuments of corners, as placed upon the ground, control over the calls of the maps, plats and field-notes. Therefore, although the monuments of the northeast corner and northwest corner of section 25 are north of the calls of the field-notes on one side 755 feet and on the other 736 feet, still we are bound to accept them as marking the correct line, instead of relying upon the plat and field-notes. Morrison v. Neff (Neb.) 20 N.W. 254; Stangair v. Roads, 41 Wash. 583, 84 P. 405; Goodman v. Myrick, 5 Or. 65; Killgore v. Carmichael, 42 Or. 618, 72 P. 637; Harrington v. Boehmer, 134 Cal. 196, 66 P. 214, 489; Hess v. Meyer, 73 Mich. 259, 41 N.W. 422; Mayor v. Burns, 114 Mo. 426, 19 S.W. 1107, 21 S.W....