Keyser v. Sutherland

• Decision Date: 03 February 1886
• Citation: 26 N.W. 865,59 Mich. 455
• Court: Michigan Supreme Court
• Parties: KEYSER v. SUTHERLAND.

26 N.W. 865

59 Mich. 455

KEYSER v. SUTHERLAND.

Supreme Court of Michigan

February 3, 1886

Error to Kalamazoo.

Hampden Kelsey, for plaintiff.

Breese & Stearns, for defendant and appellant.

MORSE, J.

This is an action of ejectment to recover a piece of land which lies on the west side of the S.W. 1/4 of the N.W. 1/4 of section 29, in town 2 S., of range 11 W. Said piece of land is bounded on the west by the section line which runs on the east of section 30, and on the east by what is claimed to be the west line of an Indian reserve. The plaintiff holds the title without dispute of the said S.W. 1/4 of the N.W. 1/4 of section 29, as patented from the government, and claims that this strip of land is contained within that description. The defendant claims his title under a patent from the United States, issued to one Barnard, September 10, 1838, which patent granted the "south fraction of section 29 according to the official plat of the survey of lands returned to the surveyor general." He also asserts title by adverse possession under color of a deed from one John Payne, dated February 27, 1850, and describing land as follows: "All of the following piece or parcel of land, situated in Kalamazoo, in Kalamazoo county Michigan, and designated as all that part or portion of the south fraction of section 29 which joins the E. 1/2 of the S.E. 1/4 and the S.E. 1/4 of the N.E. 1/4 of section 30, of township 2 S., of range 11 W. He claims that under said deed he has occupied this strip of land, and inclosed the same by a fence or fences, for over 20 years continuously. This deed from Payne was not shown to be connected with any conveyance from the United States. It appears from the evidence that the first government survey of this township was in November 1825, when John Mutlett, United States deputy surveyor commenced the survey of what was known as the Matchebenashewish Indian reservation, setting a post for the north-east corner of such reserve near Goselak's house on the twenty-seventh of the month, and surveying the north and east boundaries of the reservation. On the 28th he surveyed the south boundary of the township 2 S., of 11 W. On the 29th he surveyed the east boundary of same town, and the west boundary on the 30th. On the 31st he surveyed the west and south boundaries of the reserve, and December 23, 1826, he surveyed the north boundary of the township. Between January 8 and 17, 1827, the same officer subdivided the territory outside of the reservation into sections and fractions, establishing corners, etc. The Indian reserve was regarded in every instance, and all lines stop at the boundary thereof, and fractional pieces were formed, with given areas entirely surrounding said reserve. Between June 16 and 22, 1829, the reservation was subdivided into sections and fractions by Orange Risdon, deputy United States surveyor, and the lands therein contained restored to or put into market by the government.

If the Barnard patent, under which defendant claims, embraces within its description this strip of land, it ends this controversy, and the verdict below should have been directed, as counsel for appellant claims, for the defendant. Upon a careful examination of the government plat of the township in which this Indian reservation was contained, the field-notes of the surveyors, and the authorities bearing upon the subject, we conclude that, as a matter of law from the uncontroverted facts, this patent issued by the United States to Barnard, and purporting to convey the "lot or south fraction of section 29," in said township, does not include this strip of land in dispute here. It is true that the Barnard patent was issued before the one to O'Brien, under which plaintiff claims, the O'Brien patent being dated May 1, 1839; but the latter description calls for a full subdivision, to-wit, the S.W. 1/4 of the N.W. 1/4 of section 29, township 2 S., of range 11 W., containing 40 acres of land, according to the official plat of the survey of said lands returned to the general land-office by the surveyor general; and, under the authorities, the date of the issuing of the patent cuts no figure in the case. By a reference to the diagram annexed herewith, it will be seen that the land in controversy between these parties, marked "A," lies entirely north of the quarter line running east and west through said section 29, and is therefore upon the N. 1/2 of said section. The south fraction of said section 29, as claimed by defendant, is the narrow strip, marked "B," running the whole distance between the north and west lines of sections 32 and 29 and the south and west lines of the Indian reservation, and being a part of section 29. The "south fraction," then, as claimed, is a narrow strip running along and adjoining the south and west side of the Indian reserve, from the north-east corner of section 32 to the north-east corner of section 30. The south fraction cannot be construed, in our opinion, as continuing any further north than the east and west quarter line of the section. This strip in dispute being north of the quarter line, cannot be a part of a south fraction of the section. These surveys of this township and the reservation, and the subdivisions of the same, were made under the acts of congress of February 11, 1805, and of April 24, 1820. Under these statutes the surveyor general had no authority to extend a south fraction north of the east and west quarter line of the section. If he did so, it was a violation of law, and contrary to the duties of his office, and therefore a void act. Brown's Lessee v. Clements, 3 How. 650, 665; Miller v. Kerr, 7 Wheat. 1.

RPT.CC.1886006796.00010

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If the intention was to close the west line of section 29 on the west line of the Indian reserve, then this strip of land running along the west side thereof, should have been divided by the quarter line into two fractions, and designated, one as the south-west fraction, and the other as the north-west fraction, under the law. Brown's Lessee v. Clements, 3 How. 664; Wilson v. Hoffman, 54 Mich. 246; S.C. 20 N.W. 37.

The quarter lines are not run upon the ground, but they exist, by law, the same as the section lines. When the township and section lines are run, and the corners marked according to law, the quarter-section lines are ascertained on the plat by protracting lines across the section north and south and east and west from the opposite quarter-section posts, set in the exterior lines of the section by the government surveyor, and smaller subdivisions are protracted, so as to make one-half and one-fourth of a quarter section. The settled policy of the law has been to survey the public lands and subdivide them, as far as possible, into square figures, running the lines north and south and east and west. By the portion of the township outside of the reservation being subdivided first, it was found that the north section line of 32 did not come up to the south line of the reserve, and a fraction was therefore surveyed and its area estimated. When the reserve was subdivided this left section 29, as platted, a fractional section, containing less than 640 acres; but by extending or protracting the east and west section and quarter lines to the corresponding section corners and quarter posts, it naturally left full subdivisions in the north half of said section, and they are described as such. It is claimed, however, that the west line of 29 stops on the west reserve line. An examination of the field-notes subdividing the reservation shows that the surveyor, in every instance, closed on the section corners instead of the reserve. In running the line west, between sections 20 and 29, he closed on the north-east corner post of 30, and on the plat marks the distance from the north-east corner of 29 to that post as 80 chains and 10 links, and as the length on the north line of 29. There is no indication upon the plat showing the north-west quarter of 29 not to be a full subdivision. Its area or any part of it was not estimated and marked, while upon the south of 29 the fractional divisions are shown, with their area. The O'Brien patent, under which plaintiff claims, calls not only for the one-fourth part of a returned subdivision, but for 40 acres of land, in so many words. Under the statute, "each section or subdivision of section, the contents whereof shall have been returned by the surveyor general, shall be held and considered as containing the exact quantity expressed in such return, and the half sections and quarter sections, the contents whereof shall not have been thus returned, shall be held and considered as containing the one-half or the one-fourth part, respectively, of the returned contents of the section of which they make part. It seems, then, that the patent covers this strip of land, without question. Wilson v. Hoffman, 54 Mich. 248; S.C. 20 N.W. 37; Brown's Lessee v. Clements, 3 How. 665.

It is argued by the defendant that, as the evidence shows that the area of the south fraction is marked upon the official plat at 39.08 acres, and as this amount of land can only be found by adding the area of this southern and the western strip together, that the whole strip, from the north line of section 29 to the east line on the south, was included in the survey of the south fraction, and intended to be and was sold as such under the Barnard patent. But this cannot control. In general, quantity in a description must give way to fixed lines and monuments. Moran v. Lezotte, 54 Mich. 88 S.C. 19 N.W. 757, and cases cited. And in this case, as already shown, if so surveyed and offered for sale, it would be void under the law, as a violation of the statute under which the survey was made. In the case of Brown's Lessee...