Hook v. Horner

• Decision Date: 14 December 1973
• Docket Number: No. 11012,11012
• Parties: Jean W. HOOK, Plaintiff-Appellant, v. Stanley HORNER et al., Defendants-Respondents.
• Court: Idaho Supreme Court

Page 554

517 P.2d 554

95 Idaho 657

Jean W. HOOK, Plaintiff-Appellant, v. Stanley HORNER et al., Defendants-Respondents.

No. 11012.

Supreme Court of Idaho.

Dec. 14, 1973.

Charles H. Kimball, Philip E. Dolan, Coeur d'Alene, for plaintiff-appellant.

Scott W. Reed, Coeur d'Alene, Cope R. Gale, Moscow, for defendants-respondents.

BAKES, Justice.

This appeal involves a boundary dispute between adjoining landowners over certain property located in Kootenai County, Idaho, on the shores of Pend Oreille Lake. Plaintiff-appellant Jean W. Hook brought this action for trespass, encroachment, fraud and quiet title against defendant-respondents Horner and Fountain, alleging that respondent Fountain wrongfully attempted to sell respondent Horner 46 feet of property belonging to appellant, and that respondent Horner was trespassing and encroaching upon 46 feet of appellant's property. Since the legal descriptions to the various properties do not overlap, the primary issue which was attempted to be litigated in the trial was the location on the ground of the line dividing the property of appellant from the land of respondents.

The following is a sketch of plaintiff's Exhibit 16, admitted into evidence, which illustrates the legal descriptions of the properties of the parties:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The legal descriptions of all the properties in question commence at the meander corner between Section 3, Township 53 North, Range 2 West, Boise Meridian, and Section 34, Township 54 North, Range 2 West, Boise Meridian, as set out in the original government survery. The descriptions then proceed in an easterly direction along the north line of Section 3. The Fountain and Horner properties lie east of a north-south line which is 1370 feet east of the meander corner between Section 3 and Section 34, and the Hook property lies west of the same north-south line. Respondent Fountain owned 200 feet immediately east of the 1370 foot north-south line, and he conveyed a portion of it immediately adjoining the plaintiff-appellant's property to respondent Horner. Appellant owned 170 feet lying immediately west of the north-sough line. The problem in this case is compounded by the fact that the meander corner in question was inundated when the water level of Lake Pend Oreille was raised by the contruction of the Albany Falls Dam in 1931.

Plaintiff alleged in her complaint, and attempted to prove, that respondent Fountain had staked out the lot which he sold to respondent Horner approximately 46 feet west of the north-south line, and thus had encroached 46 feet upon her lot. To establish that claim, appellant employed Milton Booth, a registered surveyor who had originally prepared the legal descriptions from which respondent Fountain prepared the deed to respondent horner. Surveyor Booth was called by appellant as a witness, and he testified that the meander corner described in the chain of title to both properties was presently under the waters of Lake Pend Oreille and as a result could not be located. He also testified that he did not actually locate the original section corners or retrace the notes of the original government survey, but that he did locate what appeared to be a restore corner monument at the northwest corner of Section 3, and various permanent objects such as fences, and tied into an old Coeur d'Alene-Pend Oreille railroad grade. Appellant, in an effort to introduce as evidence the survey of Milton Booth (Plaintiff's Exhibit 2), offered into evidence a 1940 survey of the property in question prepared by William Ashley in his capacity as Kootenai County Surveyor (Plaintiff's Exhibit 1). Mr. Ashley was deceased at the time of trial. For some reason, plaintiff's offer of Exhibit 1 was limited to 'illustrative purposes' and was not offered to prove the location of the properties in question. The trial court refused to admit the Ashley survey, Exhibit 1, based upon the objection of respondents that the survey was hearsay and was not presented by the person who prepared it. The trial court then refused to admit into evidence plaintiff's Exhibit 2, which was the survey made by Milton Booth, appellant's surveyor, on the ground that Mr. Booth had failed to follow proper surveying practices for the relocation of lost or obliterated coners as set forth in the United States Manual of Instructions for the Surveying of Public Lands.

Appellant assigns as her first assignment of error the trial court's rejection of plaintiff's Exhibit 1, a survey prepared in 1940 by William Ashley in his capacity as Kootenai County Surveyor. The record indicates that plaintiff's Exhibit 1 was offered for 'illustrative purposes' only. Where a witness is unable, by means of words or gestures alone, to convey to a jury or court an accurate understanding of the physical facts with which his testimony is concerned, he may make a drawing or adopt a drawing of another, as a means of portraying to the court facts which are within his knowledge. McKee v. Chase, 73 Idaho 491, 253 P.2d 787 (1953). However, in the instant case, there is no intimation in either the record or the briefs that plaintiff's Exhibit 1 was introduced to help the witness, Milton Booth, relate his testimony to the court. It was apparently offered for no other purpose than to establish various measurements from the meander corner which is presently under the waters of Lake Pend Oreille, and as a verification of the location of the northwest corner of Section 3. Thus, since plaintiff's Exhibit 1 was offered for illustrative purposes but was not utilized to portray to the court facts within the knowledge of surveyor Booth, it was correctly rejected by the trial court.

Even if plaintiff's Exhibit 1 was offered as substantive evidence and not for illustrative purposes only, as appellant apparently contends in her brief, appellant's contention that it was admissible as an ancient document must also fail. The general rule pertaining to ancient surveys is that an ancient survey made by competent authority, recorded or accepted as a public document, and produced from proper custody, will be admissible in evidence, particularly in connection with determining the location of boundary lines. 29 Am.Jur.2d, 909, p. 1017 (1967). There are no Idaho cases on the subject of ancient surveys; however, Idaho has enacted a statute governing the admissibility of surveys in general. I.C. § 31-2709 reads:

'No survey or resurveys hereafter made shall be considered legal evidence in any court within the state, except such surveys as are made in accordance with the United States manual of surveying instructions, the circular on restoration of lost or obliterated corners and subdivisions of sections, issued by the general land office, or by the authority of the United States, the state of Idaho, or by mutual consent of the parties.'

At the time William Ashley prepared his survey, Exhibit 1, in 1940, that same section was I.C.A. § 30-2209, which read as follows:

'No survey or resurveys hereafter made by the county surveyor or other surveyor, shall be considered legal evidence in any court within the state, except such surveys as are made in accordance with the United States manual of surveying instructions, the circular on restoration of lost or obliterated corners and subdivisions of sections, issued by the general land office, or by the authority of the United States, the State of Idaho, or by mutual consent of the parties.' (Emphasis added). ¹

In a case similar to the instant case, County of Bonner v. Dyer, 92 Idaho 699, 448 P.2d 986 (1968), this Court held that a county surveyor's map was admissible based upon I.C. § 9-408(2). The Court stated at page 703, 448 P.2d at page 990:

'Plaintiff's exhibit 2 would have been admissible if limited to illustrative purposes. See McKee v. Chase, 73 Idaho 491, 253 P.2d 787 (1953). However, the court admitted the exhibit to prove two facts set forth therein. Since the map was an out-of-court statement of a person not under oath and not subject to cross-examination, it constituted inadmissible hearsay, except that it appears from the record that it comes within an exception to the hearsay rule. I.C. § 9-408 in part provides:

'The entries and other writing of a decedent, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as prima facie evidence of the facts stated therein, in the following cases:

"1. * * *

"2. When it was made in the professional capacity, and in the ordinary course of professional conduct.

"3. * * *'

'Exhibit 2 was admissible under the statute.' 92 Idaho at 703.

An analysis of the opinion and the briefs submitted by the attorneys in the Dyer case indicates that the parties neither cited not argued to the court the applicability of I.C. § 31-2709, and thus it must be assumed that the survey in that case was conducted according to the Manual of Surveying Instructions as required by I.C. § 31-2709. In the instant case, the trial court's action in refusing to admit plaintiff's Exhibit 1 because it was hearsay was incorrect in view of the ruling of this Court in County of Bonner v. Dyer, supra.

However, even though the Ashley survey falls within a statutorily created exception to the hearsay rule, we agree with respondents' contention that without the field notes of the Ashley survey, or other evidence indicating that the survey was conducted in accordance with the United States Manual of Surveying Instructions, as required by I.C. § 31-2709, it cannot be admitted as substantive evidence. I.C. § 31-2709 is a specific statute governing the admissibility of surveys. I.C. § 9-408 is a general statute creating an exception to the hearsay rule for certain writings of a decedent. To the extent that there is a conflict, I.C. § 31-2709, being a specific statute, prevails over I.C. § 9-408, a general statute. State v. Jones, 34 Idaho 83, 199 P. 645 (1921). Thus,...