Kimes v. Libby

• Decision Date: 10 June 1910
• Docket Number: 16,035
• Citation: 126 N.W. 869,87 Neb. 113
• Parties: SCOTT W. KIMES, APPELLANT, v. EDWIN R. LIBBY, APPELLEE
• Court: Nebraska Supreme Court

126 N.W. 869

87 Neb. 113

SCOTT W. KIMES, APPELLANT, v. EDWIN R. LIBBY, APPELLEE

No. 16,035

Supreme Court of Nebraska

June 10, 1910

APPEAL from the district court for Antelope county: ANSON A. WELCH JUDGE. Affirmed.

AFFIRMED.

J. B Smith, for appellant.

N. D Jackson and C. H. Kelsey, contra.

OPINION

ROOT, J.

This is an action to quiet in plaintiff title to about 15 acres of land. The defendant in his answer prayed for like relief and prevailed. The plaintiff appeals.

The plaintiff in 1884, entered as a homestead under the federal law the east half of the southwest quarter of section 5, in township 25 north, of range 8 west, in Antelope county, and other lands, and his patent was issued in March, 1892. About 1884 the defendant entered the west half of the southwest quarter of said section under the acts of congress relating to timber culture. He became entitled to a patent in 1894, and it was issued in 1895. In 1885 the plaintiff and the defendant employed the county surveyor, a Mr. McGee, to locate the line dividing their respective eighties, and subsequently occupied and cultivated their holdings with respect to the line established by that official. In 1889 or 1890, the proof is not convincing as to the exact date, the litigants constructed a fence upon the line established by Mr. McGee. In 1902 the defendant caused Mr. Staples, the county surveyor of Antelope county, to resurvey the defendant's farm, and said official located the dividing line between the east and west half of the southwest quarter about 15 rods east of the line established by McGee. To this point there is no conflict in the evidence, but from thenceforward the testimony is conflicting. The plaintiff testifies that the parties hereto agreed that McGee should establish the line and each landowner would abide thereby. The plaintiff further testifies that in 1902 he was coerced into moving his fence and did not at that time know his rights in the premises. The further claim of title by adverse possession to the tract of land in dispute is advanced by the plaintiff.

Concerning the McGee survey, the evidence is satisfactory that the parties did not know the location of the dividing line between their farms; that they accepted that survey as satisfactory evidence of the true line, acted in accordance therewith, but made no specific agreement to abide by McGee's survey. The evidence further proves that Staples', and not McGee's, survey established the true line between the litigants' farms. McGee admits he did not have all of the government field notes with respect to this section at the time he made his survey, and his description of the methods employed by him in locating the line between the litigants' respective farms does not evidence the care taken by Mr. Staples while engaged in the same task. It is undisputed that the southwest government corner to section 5 and the quarter corner on the south side of the section are not evidenced by any monuments or pits created by the government surveyors, and that there are no such monuments or pits to indicate the corners of many of the interior sections in the township. Mr. Staples devoted about three days to surveying in the township in order to locate the line in dispute. He located the government corners one mile west, one mile north, three...