Knight v. Elliott

• Decision Date: 31 August 1874
• Citation: 57 Mo. 317
• Parties: ALBION KNIGHT, Defendant in Error, v. SAMUEL ELLIOTT, Plaintiff in Error.
• Court: Missouri Supreme Court

57 Mo. 317

ALBION KNIGHT, Defendant in Error,

v.SAMUEL ELLIOTT, Plaintiff in Error.

Supreme Court of Missouri.

August Term, 1874.

Error to Chariton Circuit Court.

Turner & Caples and Shackleford, for Plaintiff in Error.

I. The laws of congress prescribing the mode of surveying and sub-dividing fractional sections, are only applicable to the original surveying and sub-dividing of such sections by the government, and have no bearing on subsequent surveys made for the purpose of ascertaining where the lines were originally run; and are therefore not in conflict with the statute of Missouri, regulating such subsequent surveys.

L. H. Waters and C. Hammond, for Defendant in Error.

I. The acts of congress and the rules and regulations prescribed by the General Land Office, under which the public lands were surveyed, must be observed in re-locating lines, and in re-establishing lost corners, so far as the same are applicable.

In re-establishing lost corners, the surveyor must conform if possible to the government surveys. The course to ascertain the true corners and to establish them in section 18, when the south east corner is found or established, is to run west on the south line forty chains, which would make the quarter section corner, and then run to the south west corner of the section. This would give to the south east quarter 160 acres, and throw the surplus or deficiency with the south west quarter. (See General Instructions from Land Office, etc.)

II. The original surveys establish the rights of the parties, and must govern. (May vs. Baskin, 12 Sm. & M., 429; Baker vs. Dalbert, 6 Mon., 182; Colvin vs. Fell, 40 Ill., 418.)

VORIES, Judge, delivered the opinion of the court.

This was an action of trespass, brought in the Chariton Circuit Court to recover damages for certain trespasses, charged to have been committed by the defendant on the lands of the plaintiff.

The defendant in his answer claimed to be the owner of the lands on which the trespasses were charged to have been committed.

It is shown by the facts appearing in the bill of exceptions, that the plaintiff and defendant were adjoining owners and proprietors of lands situated in the south half of section 18, in township 54, of range 19, in Chariton county, Missouri, the plaintiff being the owner and in the possession of the south west quarter, and the defendant being the owner and in the possession of the south east quarter of said section.

It seems that the respective parties, and those under whom they claim, had been in possession of their respective tracts of lands for eighteen or nineteen years; that shortly after these lands were occupied by the parties, a partition fence was erected by them for the purpose of separating their lands, and that the plaintiff occupied and cultivated the lands, on and up to the west side of said fence, the defendant occupying and cultivating on the east side of the fence. This fence started from a point on the south line or boundary of said section, just forty chains from the south east corner of said section, and was run directly north; which would leave as the quantity of land contained in the south east quarter of said section just one hundred and sixty acres, leaving the remainder of the half section, which bounded on the township line on the west, and was fractional, for the plaintiff, who it is admitted was the owner of the south west quarter of said section.

This division fence, after remaining for several years, was removed by the parties, and the lands of the plaintiff and defendant situated on either side of said line were thrown into a common inclosure with no fence between them; but the parties continued to cultivate as before, each one up to the line from which the fence had been removed on his respective side thereof, until the year 1870, the time of the origin of the difficulty out of which this action grew.

By the field notes of the government survey and sub-division of this section of land, the south line of the south east quarter is stated to be forty chains long, and the south line of the south west quarter (which is fractional) is stated to be 35.42 chains long, making the whole south line of the section 75.42 chains; but by a recent survey of this section, made in 1870, the south line of said section was found to measure 77.79 chains, making an excess over the reported length of the line of 2.37 chains. The surveyor, in order to fix a dividing line between the south east and south west quarters of the section, divided this excess between the two quarters, in proportion to the reported quantities in each, thus placing the quarter section corner in the south line of the section, 41.25 chains west of the south east corner of the section, and giving the remainder of the surplus to the south west fractional quarter, which belonged to the plaintiff. By this survey, the south east quarter is made to contain 165.09 acres, and the south west quarter 143.22 acres.

By this means 5.09 acres on the west of the line to which the parties had previously cultivated were added to the south east quarter; consisting of a strip along the entire west side of the south east quarter, which was taken from the fields cultivated and occupied by the plaintiff.

After this survey the defendant entered on this strip of land thus taken from the plaintiff's field, and commenced to erect a fence on this new line thus established by said survey. For this entry the present action of trespass was commenced by the plaintiff.

The original corner between these quarters of land on the south line had been lost or obliterated.

Several surveyors were examined as witnesses at the trial; those introduced by the defendant testifying that the proper method to establish lost quarter section corners, was to place the corner at a point of equal distance from the exterior corners of the section, and to thus divide the excess or deficiency above or below the distances named in the government surveys, equally between the different quarters, and in fractional sections the excess must be divided in proportion to the reported quantity in each quarter. The surveyors who were introduced by the plaintiff agree, that in interior sections where quarter section corners have been lost, the proper way to re-establish said lost corners, is to first find the corners of the section, and place the quarter section corner at the center point on the line between the two corners; but they contend that a different rule must be, and always is, adopted, and is required by the regulations of the Land Department of the United States, in the sub-division of sections bordering on the north and west lines of township, which are generally what are called anomalous or fractional sections; that in such sections, in order to establish a lost quarter section corner, if, as in this case, the section is bounded on the west by a township line, it must be sub-divided and the corners found by first finding the interior corner of the section, and from thence runing west exactly forty chains, at which point the quarter section corner is placed, leaving what remains between that point and the township line to constitute the south west or north west quarter, as the case may be, without regard to quantity or distance, thus throwing the fractions on the township line These being substantially the facts as proved in the case, and the case being on trial without the intervention of a jury, the court, among other declarations of law made in the case at the instance of the plaintiff, declared the law to be:

1st. “The State cannot make any rule or law in conflict with the laws of congress, and the instructions of the General Land Office Department, given in pursuance thereof.”

2d. “In sub-dividing fractional sections lying upon the range line, any excess in the length of the east and west lines over the original length of such lines, as surveyed by the government surveyors, should be assigned to the fractional quarter where the same...