Klinkefus v. Vanmeter

• Decision Date: 26 January 1904
• Citation: Klinkefus v. Vanmeter, 122 Iowa. 412, 98 N. W. 286 (Iowa 1904)
• Parties: RHINEHART KLINKEFUS, Appellant, v. JOHN VANMETER
• Court: Iowa Supreme Court

98 N.W. 286

122 Iowa 412

RHINEHART KLINKEFUS, Appellant, v. JOHN VANMETER

Supreme Court of Iowa, Des Moines

January 26, 1904

Appeal from Shelby District Court.--HON. A. B. THORNELL, Judge.

ACTION in equity to enjoin the maintenance by defendant of a fence obstructing a highway adjoining plaintiff's premises.The issue raised by defendant was as to the true location of the highway, his contention being that it was in fact located on land claimed by plaintiff, and that the highway as contended for by plaintiff was in reality a part of defendant's premises.Decree for defendant.Plaintiff appeals.

Reversed.

Thos H. Smith for appellant.

Byers & Lockwood for appellee.

OPINION

McCLAIN, J.

The farms of plaintiff and defendant, to which the controversy in this case relates, lie opposite to each other, on the south and north sides, respectively, of a section line, along which has been located a highway.Defendant has by recent change of fence along his south line, included a strip of land over which, as plaintiff contends, the highway is located, the claim of defendant being that the highway is south of his fence as recently constructed, and upon the land claimed by plaintiff as his own.The real dispute, therefore, is as to the location of the section line.Not long before the bringing of this suit, defendant caused a survey to be made by the county surveyor, who, starting from what he considered to be the northeast and northwest corners, as fixed by the government surveyor, of the section in which defendant's land is situated, and measuring the section lines south from such corners, found that, in his judgment, the line between plaintiff's and defendant's land was enough further south of the line contended for by plaintiff to throw substantially the entire width of the highway upon the land claimed by plaintiff as south of the boundary line between his premises and the highway; and defendant is now insisting on maintaining his fence in accordance with this new survey.The evidence shows beyond question that the line contended for by plaintiff was located with reference to certain stakes and marks which by plaintiff and others were supposed to indicate the line as fixed by the government surveyor; and we have therefore the question, which often arises, whether a new survey based on independent measurements made in accordance with the directions of the original field notes shall prevail against the actual location on the ground of a given line by the original surveyor, or, rather, we would have such a question if there was any satisfactory evidence as to where the original section line in controversy was actually located.We are compelled to admit, however, that the evidence on this point is extremely uncertain.But the fact that the new surveyor found that, if the line contended for by plaintiff is correct, defendant's land falls short of the quantity called for by the original survey, does not, in our opinion,...