Kincaid v. Dormey

• Citation: 47 Mo. 337
• Parties: JOHN H. H. KINCAID, Respondent, v. EDWARD DORMEY, Appellant.
• Decision Date: 28 February 1871
• Court: United States State Supreme Court of Missouri

47 Mo. 337

JOHN H. H. KINCAID, Respondent,

v.EDWARD DORMEY, Appellant.

Supreme Court of Missouri.

February Term, 1871.

Appeal from Livingston Court of Common Pleas.

The evidence in this case showed that the appellant was the owner of 120 acres of land off the north side of the northwest quarter of section 1, in township 56, range 24, in Livingston county, Mo., and the respondent is the owner of the remainder of said quarter-section. The quarter-section was entered from the United States in the year 1857 by one Samuel Farris, under an agreement (as contended by appellant) with respondent that it should be divided between them in the proportions stated. Before the purchase by Farris he entered upon and took possession of the north 120 acres of the said quarter-section, and the respondent took possession of the remainder in 1857, immediately after the entry by Farris. The same year, or the following one, Peck ran a dividing line between said Farris and the respondent's land, cutting off 120 acres on the north, and said parties occupied and possessed accordingly. Afterward, in the latter part of 1859 or early part of 1860, the said parties procured one Garvin, a surveyor, to re-run said line between said parties, which line was located by said Garvin at about the same place as that previously run by Peck. This line run by Garvin was used and recognized by said parties as the boundary between their lands from the time it was run until said Farris sold and conveyed his 120 acres to the appellant in 1868, by possessing and occupying up to it on their respective sides, and by each party building one-half of a partition fence on said line.

See further the opinion of the court.

James McFerran, for appellant.

Wait, Broaddus & Pollard, for respondent.

BLISS, Judge, delivered the opinion of the court.

The parties are adjacent owners of land embraced in the northwest quarter of section 1, etc., the defendant owning the north 120 acres, and the plaintiff the balance. The plaintiff brings his action for some ten acres alleged to be inclosed and occupied by the defendant over and above his 120 acres, and the controversy is in relation to the true division line. Defendant appeals from the judgment against him, and first objects to the action of the court in admitting in evidence the record of a survey made by the county surveyor, in which he established the destroyed quarter-section corners of said section 1, and run off the defendant's land. The only colorable ground of objection was the omission by the surveyor to note upon the plat and field-notes “the magnetic variation which the lines of the survey were run,” as required by section 13, chapter 27, Gen. Stat. 1865 (Wagn. Stat. 1309). The language of the statute requiring such variation to be noted is general, and must apply to the record offered in evidence, unless from its object and the nature of the record it is inapplicable. The survey shows that the surveyor established the destroyed quarter-section corners on the north and south lines of the section, as well as the corner in the center of the section, and established monuments; also that he established the southeast and southwest corners of the 120 acres equi-distant from the north line of the section. In this the surveyor gives no courses whatever, nor was it necessary to do so. His only legitimate object was to find the old corners and to lay off the amount of land called for by defendant's deed. In re-establishing the old quarter-section corners, according to section 31 of the statute, or in establishing the center corner upon the open lines, according to section 24, it does not concern the surveyor to know the true meridian or the variation of the needle. He runs no new lines; he describes no new courses; nor is it required that he give the courses contained in the map and field-notes of the original United States survey. Hence there can be no conceivable object in noting the magnetic variation at the time. Where he makes and describes a new line by courses and distances, it may become very important in after-years, in order, in the loss of monuments, to ascertain its true location, to know the magnetic condition of the needle at the time, and its relation to his line. Hence he is required, in such cases, to say...