In re The Appeal of Charles Glenton Boyer v. Mavity

• Decision Date: 11 February 1928
• Docket Number: 27,874
• Citation: 263 P. 1066,125 Kan. 319
• Parties: In the Matter of the Appeal of CHARLES GLENTON BOYER et al., Appellants, v. CHARLES CHAMPENY and J. W. MAVITY, County Surveyor of Sumner County, Appellees
• Court: Kansas Supreme Court

263 P. 1066

125 Kan. 319

In the Matter of the Appeal of CHARLES GLENTON BOYER et al., Appellants, v. CHARLES CHAMPENY and J. W. MAVITY, County Surveyor of Sumner County, Appellees

No. 27,874

Supreme Court of Kansas

February 11, 1928

Decided January, 1928

Appeal from Sumner district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BOUNDARIES--Establishment by Statutory Survey--Jurisdiction of Surveyor. A statutory survey is to locate boundaries; the title to land is not involved. The surveyor has no jurisdiction to construe and interpret ambiguous deeds of conveyance, to determine the intention of the parties thereto.

2. SAME--Sufficiency of Survey. A complaint that a survey is void for inaccuracies is examined and held to be without merit.

3. SAME--Survey--Time for Filing Report. Under the facts stated in the opinion it was not error for the court to refuse to set aside a report of a survey on the ground that it was filed too late.

Chester I. Long, J. D. Houston, Austin M. Cowan, Claude I. Depew James G. Norton and W. E. Stanley, all of Wichita, for the appellants.

E. J. Taggart and John Bradley, both of Wellington, for the appellees.

OPINION

HARVEY, J.:

This is an appeal from a survey made by the county surveyor on notice, as provided by R. S. 19-1423 et seq. The facts disclosed by the record are substantially as follows: The Arkansas river flows in a direction a little east of south through section 36, township 31 south, range 2 east, in Sumner county. Nearly half a mile north of the south line of the section the river divides into two channels, forming an island between them. This island, or the part here in question at least, is described on the government survey as lot 11, island No. 1 of the section. The main channel of the river flows southward to the east of the island. A much smaller channel of the river flows southward west of the island. This island, and other land near it, was owned by E. M. Nevins. Nevins erected a mill near the intersection of the south line of section 36 and the west channel of the river, to be operated by water power. To do this he put a dam or head gate across the west channel of the river near the mill. Then, in order to get a greater or more uniform flow of water through the west channel of the river, he built a dam across the east or main channel of the river. This building was done in 1875 and 1876. The dam began on the east bank of the main channel some distance north of the north end of the island and extended in a southwesterly direction diagonally across the east channel of the river to the end of the island, and terminated at its west end at a point on the east side of the west channel of the river. This dam was perhaps 1,600 feet long. The west (or south) end of it, for several hundred feet, was along, or over, a low sandy stretch from the north end of the island, as surveyed by the United States government survey, to where the water divided to form the two river channels. The west channel of the river later became known as the mill race or cut-off.

In September, 1899, Nevins sold the mill property to C. S. Griffin and conveyed the same by warranty deed. This deed described the mill property proper, with which we are not here concerned, and--

"Also a strip of land thirty feet wide off of west side of lot 11, island No. 1, in sec. 36, twp. 31 S., range 2 east, described as follows, to wit: Commencing fifty feet south of the dam and head gate in the mill race or cut-off west of island No. 1 in S. E. 1/4 of sec. 36, twp. 31 S., range 2 east; thence running north along said mill race or cut-off to a point within ten (10) rods of the west end of the dam, at water line across the Arkansas river; thence east to the Arkansas river; thence northerly along said river to the dam; thence south along said mill race or cut-off to the place of beginning."

The appellee, Charles Champeny, claims through mesne conveyance under this deed.

In January, 1909, Nevins conveyed to Thomas Marvin Boyer and Charles Glenton Boyer, appellants herein,

"Lot eleven (11), island No. one, in section thirty-six, township thirty-one south, range two east, except a strip of land off of the west side of lot eleven, island No. one, described as follows: Commencing 50 feet south of dam and head gate in the mill race of cut-off west of island No. one, in section 36, township 31 south, range 2 east; thence running north along said mill race or cut-off to a point within 10 rods of west end of the dam at water line--dam across Arkansas river; thence east to Arkansas river; thence north along said river to south end of dam; thence southerly along said mill race or cut-off to place of beginning,"

and other property with which we are not here concerned. On January 3, 1924, Charles Champeny gave the county surveyor notice of his ownership of the property described in the deed under which he claims and of his desire of a survey "to establish permanently the point which is located within ten rods of the west end of dam across the Arkansas river (as stated in the description)." Due notice was given to the appellants. Appellee, appellants and others were present at the time of the survey. At the time of the survey the south end of the dam, as originally constructed, for some distance, perhaps 800 feet, had been covered with sand and dirt. The surveyor took evidence of the location of the west end of the dam. The location of the thirty-foot strip was not in dispute. The real point in controversy which the parties desired to have located was the point within ten rods of the west end of the dam. After locating that point the surveyor ran a line east to the main channel of the river, thence north along the river to the dam, thence south along the east bank of the west channel of the river to the place of beginning. The actual work of surveying was begun February 25, and adjourned to...