Keller v. Harrison
| Decision Date | 08 May 1908 |
| Citation | 116 N.W. 327,139 Iowa 383 |
| Parties | A. H. KELLER and M. K. WHITNEY, Appellees, v. T. W. HARRISON and GEORGE TELFORD, Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED TUESDAY, SEPTEMBER 29, 1908.
Appeal from Palo Alto District Court.-- HON. A. D. BAILIE, Judge.
ACTION in ejectment for the possession of a strip of land and damages for its wrongful detention resulted in a verdict and judgment for the plaintiffs. The defendants appeal.-- Reversed.
Reversed.
Dwight G. McCarty and T. W. Harrison, for appellants.
E. A Morling, for appellees.
The controversy is over the location of a boundary line. Plaintiffs own the N.E. 1/4 of section 28, and the defendant Harrison the N.W. 1/4 of the same section. Telford, being his tenant. The claim is that defendants are about twenty rods over the line, and the relief sought is the possession of this strip, together with damages for withholding the same and trespass thereon. The defendants denied that their occupancy is beyond the true boundary, interposed the defenses, adverse possession and acquiescence, and in a counterclaim pray that title be quieted in Harrison.
It appears that on the same day Harrison instituted suit to quiet title, but the notice was not served until after that in this action, which as a consequence, must be held to have been begun first. Littlejohn v. Bulles, 136 Iowa 150, 113 N.W. 756.
And as the decision of the issues in the law action are determinative of those raised in the counterclaim, the motion to transfer to the equity side of the calendar was rightly overruled. Gibson v. Seney, 138 Iowa 383, 116 N.W. 325.
Nor was there any error in overruling the motion to consolidate this action with the suit in equity. Hodowal v. Yearous, 103 Iowa 32, 72 N.W. 294. Even were it otherwise, the refusal to order consolidation is so largely discretionary that we should not have interfered. Jones v. Witousek, 114 Iowa 14, 86 N.W. 59.
II. Defendants moved that the action be dismissed for that, as is contended, chapter 5 of title 21 of the Code provides an exclusive remedy for the location of lost corners and disputed boundaries. But this does not purport to do away with any remedy then existing. The proceeding is special, and was first authorized by chapter 8, Acts 15th General Assembly; whereas, laws prescribing procedure in actions for the recovery of real property have been on the statute book since the Code of 1851, at least. As the remedy by a special proceeding to locate disputed corners and boundaries does not purport to be exclusive or take away any pre-existing remedy, either expressly or by fair implication, it must, under well-settled principles of law, be regarded as cumulative and to provide a remedy in addition to another continuing in force. See 1 Cyc. 709, and cases cited in note.
III. An amendment to plaintiff's petition and their reply were not verified, and on this ground defendants moved the court to strike them from the files. Complaint is made of the order overruling the motion. As no new cause of action was set up in the amendment to the petition, the ruling as to that was right. Section 3591, Code.
The ruling as to the reply was erroneous. Sections 3580 and 3588 of the Code. But this was without prejudice. It pleaded a general denial of the allegations of the answer which the law without reply interposed (section 3576, Code), and that portion alleging an early survey set up in the answer to have been fraudulent and incorrect was again stated more specifically in an amendment to the reply filed in response to defendants' motion. As there was no objection to this amendment, leaving the reply on file did not affect the issues.
IV. The abstract of title attached to plaintiffs' petition merely gave the character of each instrument in the chain of title, the name of grantor and grantee therein, and the book and page of record where recorded. Defendants' motion to require the dates of the instruments and of filing them to be stated was overruled. The contents of the abstract were in strict compliance with section 4188 of the Code, and no more was required.
V. The county auditor identified a book as a certified copy of the field notes of the United States government survey kept in his office. To it was attached the certificate of Aaron Brown, register of the state land office of the state of Iowa that from pages 1 to 399, inclusive, was a true and correct copy of the field notes of the government survey on deposit in his office. This certificate was dated April 21, 1873, and the book was filed with the auditor January 6, 1874. The pages including the field notes relating to the land in controversy were then introduced in evidence over defendant's objection. Section 4635 of the Code provides that "duly certified copies of all records and entries of papers belonging to any public officer, or by authority of law filed to be kept therein, shall be evidence in all cases of equal credibility with the original record or papers so filed." If, then, the book was properly kept in the auditor's office, there can be no doubt of the correctness of the court's ruling. By an act of Congress, approved June 12, 1840, chapter 36, 5 Stat. 384, the Secretary of the Treasury was directed "to take all necessary measures for the completion of the surveys in the several districts for which surveyor generals have been or may be appointed at the earliest possible period compatible with the purposes contemplated by law, and whenever the surveys and records of any such district or state shall be completed, the surveyor general thereof shall be required to deliver over to the Secretary of State of the respective states, including such surveys or such other offices as may be authorized to receive them, all the field notes, maps, records and other papers appertaining to land titles within the same." In 1866 the Legislature made it "the duty of the register of the state land office to receive any field notes, maps, records, or other papers, relating to the public surveys of this State, whenever the same shall be turned over to the state in pursuance of the above act of Congress," and upon their receipt the register was required to "provide for their safe-keeping and proper arrangement as public records." Chapter 3, Acts 12th General Assembly. See section 90, Code 1873. Duly certified copies of all records belonging to or filed to be kept in any office by authority were receivable in evidence of equal credibility as the original under section 4047 of the Revision of 1860, and under section 248 of the Revision the county judge was required "to procure for his county a copy of the original field notes of the original survey of his county by the United States," and deposit the same in his office. By an act of the Twelfth General Assembly the office of county judge was abolished, the act to take effect in this respect January 1, 1869, and the jurisdiction of the county court being transferred to the circuit court then established, and he was made ex officio county auditor until the first Monday in January of 1869, and upon the election of the latter required to turn the office over to him. Chapters 86 and 160, Acts 12th General Assembly. These enactments made no provision for the copy of the original field notes which may have been procured in pursuance of law by the county judge, and whether in view of the duties imposed by the last-cited act it may be inferred that the custody thereof was intended to pass to the county auditor is not necessary now to determine inasmuch as the certified copy was filed subsequent to the adoption of the Code of 1873. The duties of the county surveyor are defined by chapter 8 of title 4 of that Code, of which section 371 enjoins that "Previous to making any survey he shall furnish himself with a copy of the field notes of the original survey of the same land, if there be any in the office of the county auditor and his survey shall be made in accordance therewith." Section 535 of the Code is identical with this, save that there is inserted in lieu of "the office," the words, "his office or that," so that the statute recognized the county auditor as a proper custodian of the copy of the government field notes, at the time this was filed, and has so done ever since. This being so, and the same having been certified as required by law, it was rightly received in evidence.
VI. The tax books were received in evidence showing that since 1873 the E. 1/2 of the N.W. 1/4 of section 28 had been assessed as eighty acres, and taxes paid thereon by defendant as such, and that the same was true of the W. 1/2 of the N.W. 1/4 since he acquired it in 1884, and also that the N.E. 1/4 of the section had always been assessed and taxes levied thereon as a full quarter. This evidence was admissible as bearing on the good faith of the defendant. If he claimed to own the land, it was his duty to see that it was properly assessed, and the fact that he did not may be considered for the purpose stated. Of course, he might have claimed to have owned the land and remained silent to avoid taxation, and, on the other hand, he may not have had it assessed because he did not claim to own the land. Where the discrepancy is small, this might be of slight or no significance, but it is otherwise where it is so great as in this case. The ruling by which the books were received is approved.
VII. The defendant Harrison, as county surveyor, in April, 1873 surveyed the...
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