Hershberger v. Bollman

• Decision Date: 16 June 1942
• Docket Number: 16893.
• Citation: 42 N.E.2d 389,111 Ind.App. 687
• Parties: HERSHBERGER et ux. v. BOLLMAN et ux.
• Court: Indiana Appellate Court

42 N.E.2d 389

111 Ind.App. 687

HERSHBERGER et ux. v. BOLLMAN et ux.

No. 16893.

Appellate Court of Indiana, in Banc.

June 16, 1942

Harry E. Vernon, of Goshen, for appellants.

No appearance for appellee.

CURTIS Judge.

This action in the trial court was an appeal to the Elkhart Circuit Court from an official survey by the surveyor of Elkhart County, Indiana, made upon proper request and notice on the 5th day of July, 1940, for the purpose of establishing and perpetuating the true corner and lot line between Lots 26 and 27 of Stauffer's Fourth Addition to the City of Nappanee, Indiana. Said appeal and proceedings in the trial court were under the provisions of Sections 49-3313 and 49-3314 of Burns' Revised Statutes of Indiana, 1933 Sections 5515 and 5516, Baldwin's Ind.Statutes 1934, and in conformity therewith.

By said appeal to the trial court, the appellant sought to challenge the correctness of said survey. Said matter was submitted to said court from whose finding and judgment we quote as follows:

It is "Adjudged and decreed that the survey of the County Surveyor of Elkhart County, Indiana, and duly made on the 5th day of July, 1940, is true and correct."

"It is further ordered and decreed by the court that the said County Surveyor shall locate and perpetuate such lines and corners according to said survey by depositing in the proper places below the freezing point a stone or other durable material for marking and said surveyor shall make due entry thereof in his field notes as required by law."

It is from the above judgment that this appeal has been prosecuted the error assigned being the overruling of the motion for new trial which had been timely filed. The causes or grounds of the said motion, which are presented, are that the decision of the court is not sustained by sufficient evidence and is contrary to law.

The above assignment of error requires a consideration of the evidence as applied to the statute. We now quote Section 49-3313 as follows: " Survey as prima facie evidence--Appeal--Proceedings.--The survey of such surveyor shall be prima facie evidence in favor of the corners so established and the lines so run; but an appeal may be taken to the circuit court, within three (3) years, and such court may reverse such survey. Upon such appeal being prayed for by any person, such surveyor shall forthwith transmit the papers in his hands touching the same, and copies of the field-notes in the case complained of, without requiring an appeal bond and such court, in trial of such appeal, may receive evidence of other surveys of the same premises, made by the same or other persons, either before or since the one...