Humphrey v. Whitney

• Citation: 103 P. 389,17 Idaho 14
• Parties: W. W. HUMPHREY et al., Respondents, v. JAMES G. WHITNEY et al., Appellants
• Decision Date: 03 July 1909
• Court: United States State Supreme Court of Idaho

103 P. 389

17 Idaho 14

W. W. HUMPHREY et al., Respondents, v. JAMES G. WHITNEY et al., Appellants

Supreme Court of Idaho

July 3, 1909

BILL OF EXCEPTIONS-ASSIGNMENT OF ERRORS-INSUFFICIENCY OF THE EVIDENCE-GOVERNMENT SURVEY.

1. This court will not review the sufficiency of the evidence to sustain the findings or judgment on an appeal from the judgment, unless the bill of exceptions contains a specification of the particulars in which it is claimed the evidence is insufficient.

2. Errors of law occurring at the trial may be reviewed upon an appeal from the judgment, although no specification of the particular errors of law, on which the appellant relies, is contained in the bill of exceptions.

3. "Assignment of errors" on the ground that the evidence does not support the findings and judgment, printed as a part of the transcript but not made a part of the bill of exceptions, will be stricken from the transcript on motion.

4. A bill of exceptions will not be stricken from the transcript because it does not contain "an assignment of errors" of the particulars in which it is claimed the evidence is insufficient to support the judgment, but will be retained and considered, for the purpose of determining alleged errors of law occurring during the progress of the trial.

5. In an action brought for the purpose of having determined the corners and lines of a government survey, in which the issue is made as to whether either of two different surveys conforms to the government survey, and in which the issue is made as to whether the parties to the action entered such land according to one of such surveys, any evidence in relation to the correctness of such surveys, the manner in which the same were made and the circumstances under which the parties to said suit entered such land, is admissible.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Edward A. Walters, Judge.

An action to determine the corners and boundary lines dividing the lands of the respective parties to such action and to quiet the title of such persons to such lands. Judgment for plaintiffs. Defendants appeal. Affirmed.

Judgment affirmed. Costs awarded to respondents.

M. J Sweeley, for Appellants.

This action, in all its essential elements, is controlled by the decision of this court in the case of Taylor v Reising, 13 Idaho 226, 89 P. 943, which case involves the same surveys and, in a general way, all the facts that are material herein. The decision in that case is fully supported by the authorities cited in the opinion, and also by the following: Town of Juliaetta v. Smith, 12 Idaho 288 (292), 85 P. 923; Van Wyck v. Wright, 18 Wend. 158; Jordan v. Deaton, 23 Ark. 704; Bolton v. Eggleston, 61 Iowa 163, 16 N.W. 62; New York N. T. Land Co. v. Gardner (Tex. Civ. App.), 25 S.W. 737; State v. Forrest, 12 Wash. 483, 41 P. 194; Clark v. Hindman, 46 Ore. 67, 79 P. 56; First Nat. Bank v. McDonald, 42 Ore. 257, 70 P. 901.

S. T. Hamilton, and Stockslager & Bowen, for Respondents.

There is no dispute but what all entries, selections, locations, proofs and patents were made and issued with reference to, and in accordance with, the government survey designation, and as provided by federal statutes. In such cases the official approved government survey is a part of such entries, patent or deeds of conveyance. (U. S. Rev. Stat., secs. 2395, 2396; Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566; Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L. ed. 872; Chapman v. Polack, 70 Cal. 487, 11 P. 765; Goltermann v. Schiermeyer, 111 Mo. 404, 19 S.W. 484, 20 S.W. 161.) The true corners and lines of a government subdivision of land are where the United States surveyors in fact establish them, and connot be changed by individuals, at any time, nor by the government itself after vested rights have intervened. (Beardsley v. Crane, 52 Minn. 537, 54 N.W. 740; Greer v. Squire, 9 Wash. 359, 37 P. 545; Nesselrode v. Parish, 59 Iowa 570, 13 N.W. 746; Sawyer v. Cox, 63 Ill. 130; Spawr v. Johnson, 49 Kan. 788, 31 P. 664; Randall v. Burk, 4 S.D. 337; Rowell v. Weineman, 119 Iowa 256, 97 Am. St. 310, 93 N.W. 279; Vittoe v. Richardson, 58 Iowa 575, 12 N.W. 603; Climer v. Wallace, 28 Mo. 556, 75 Am. Dec. 135.)

If the transcript contains anything not specified by the statute, it will be stricken out on motion. (Taylor v. McCormick, 7 Idaho 524, 64 P. 239; Williams v. Boise B. Min. Co., 11 Idaho 233, 81 P. 646.) If an appeal is taken from the judgment upon a bill of exceptions, relying upon the sufficiency of the evidence to sustain the decision, the bill must contain exceptions upon that ground, and must specify the particulars in which such evidence is alleged to be insufficient. (Rev. Codes, sec. 4428; Warren v. Stoddart, 6 Idaho 692, 59 P. 540; Hole v. Van Duzer, 11 Idaho 79, 81 P. 109.)

STEWART, J. Ailshie, J., concurs. Sullivan, C. J., did not sit at the hearing.

OPINION

STEWART, J.

--W. W. Humphrey and thirty-three other plaintiffs brought this action against James G. Whitney and one hundred and nineteen other defendants for the purpose of having determined the true line of the government survey of the lands in township 10 south, range 17 east, Boise meridian, and incidentally to quiet the title of the respective parties to lands claimed by them in said township and range. No question is raised in this case as to the right of the plaintiffs to maintain this action against the defendants or of the misjoinder of either parties plaintiff or defendant, and we shall consider this case in the light of what appears to be conceded by both parties, that the suit may be maintained by plaintiffs against the defendants for the relief sought in such case.

The complaint alleges, among other things, that on July 1, 1901 the government of the United States, through E. A. Hitchcock, secretary of the interior, entered into an agreement with the state of Idaho through Frank W. Hunt, governor, providing for the selection and segregation, for the purpose of irrigation, settlement and reclamation, of a large tract of land in said state, desert in character; that said articles of agreement were entered into for the purpose of carrying out and effectuating the purpose of the law known as the Carey act; that on January 3, 1903, the state of Idaho, through its legally constituted state board of land commissioners, as officers and agents of the state, entered into and executed an agreement with the Twin Falls Land and Water Company, whereby said Twin Falls Land and Water Company agreed to provide, and to use water already appropriated by it and its predecessors in title, and to erect and construct dams and reservoirs for conserving and impounding of the waters of Snake river, and to construct a system of canals and ditches whereby said waters could be carried to use, to irrigate and reclaim a large tract of land situated in Twin Falls county in said state; that under and by virtue of the provisions of said contract the said state of Idaho, through its state board of land commissioners, agreed to sell the lands therein described, susceptible of irrigation, cultivation and reclamation, to such person or persons as were entitled to file upon and enter the same, and the said Twin Falls Land and Water Company agreed and stipulated, as rapidly as lands were to be open for entry and settlement, to sell or contract to sell water rights or shares for lands filed upon or entered and to carry out and fulfill the purpose, intent and object of said Carey act; that under said law and the laws of the state of Idaho, the said state of Idaho, through its state board of land commissioners, had the right to sell and contract to sell all lands thus rendered susceptible of irrigation, cultivation and reclamation under said system of the Twin Falls Land and Water Company to entrymen and purchasers, and that under and by virtue of said laws and contracts these plaintiffs, or their grantors, except the Twin Falls Waterworks Company, entered and purchased water rights therefor, and now hold and possess certain lands (describing the same), and that under and by virtue of the same laws and contracts the said defendants and their grantors entered and purchased water rights therefor and now own, hold and possess said lands (describing them); that long prior to the entry or purchase of any of said lands the United States government caused an official survey of said lands to be made and the township, range, section and subsection corners and lines thereof to be officially established and marked upon the ground, and that all of said lands so entered, purchased and held by each of the plaintiffs and defendants or their grantors were entered and purchased, and the titles thereto are now held by said persons according to the government legal subdivisions thereof; that after the execution of the contract between the state of Idaho and the Twin Falls Land and Water Company another survey of said lands was made by John E. Hayes whereby the township, range, section and subsection corners and lines of said lands were pretended to be located in different positions from where the same were located by said government survey; that said Hayes' survey was and is erroneous and incorrect, and erroneously and incorrectly pretended to locate the corners and lines of said lands; that the defendants and all of them erroneously and wrongfully claim that the corners and lines of their respective tracts and parcels of land are as shown by said Hayes survey, and where any of the lands of the defendants conflict with and overlap the lands of any of the plaintiffs, as shown by the government survey, such defendants wrongfully and unlawfully claim the title...