Lehman v. Smith
| Decision Date | 22 July 1918 |
| Docket Number | 4211. |
| Citation | 168 N.W. 857,40 S.D. 556 |
| Parties | LEHMAN v. SMITH et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Davison County; Frank B. Smith, Judge.
Action by Jacob C. Lehman against William M. Smith and others. From judgment for defendants, and order overruling motion for a new trial, plaintiff appeals. Reversed, and cause remanded.
Lauritz Miller, of Mitchell, for appellant.
Herbert E. Hitchcock and Spangler & Haney, all of Mitchell, for respondents.
This case is before us on appeal from a judgment for respondents and from an order overruling appellant's motion for new trial. The controversy is as to the location of the quarter section corner common to sections 28 and 33, township 103 range 61, in Davison county. The location of this corner is decisive of the boundary line of the tract of land in dispute.
Appellant properly assigns as error insufficiency of the evidence to sustain the findings and conclusion of the trial court First, that the government corner in dispute was a lost corner; second, that upon the facts appellant should be estopped by acquiescence and laches from disputing the location of the corner as claimed by respondents. Appellant also assigns as error an order of the trial court permitting respondents to amend their answer by pleading an estoppel, after the conclusion of the trial. The amendment pleaded constituted a new and independent defense, but was permitted as conforming the pleading to the evidence already before the trial court. Appellant's contention is that the evidence received was not directed to the defense of estoppel, and that the amendment, being allowed after the trial, prevented him from introducing evidence to combat the defense of estoppel and that such defense could not have been anticipated. If it be assumed that the amendment introduced a new issue, which was in effect a surprise to appellant, and that he was not then prepared with necessary and available evidence to meet such issue, it was his duty so to advise the trial court and demand a postponement of the trial for a reasonable time in which to procure and present his evidence. A refusal of a postponement upon a proper and sufficient showing would have been prejudicial error. The amendment itself was not legally inadmissible, but was within the sound discretion of the trial court. Wolfinger v. Thomas, 22 S.D. 57, 115 N.W. 100, 133 Am. St. Rep. 900; Rectenbaugh v. Port Huron Co., 22 S.D. 411, 118 N.W. 697; Hardy v. Woods, 33 S.D. 416, 146 N.W. 568, Ann. Cas. 1916C, 398; Noziska v. Aten, 35 S.D. 451, 152 N.W. 694, Ann. Cas. 1916C, 589. In the absence of a demand for and refusal of a postponement of the trial, appellant has not shown prejudicial error in the allowance of the amendment. The trial court found as a fact that the quarter corner common to sections 28 and 33 as originally placed by the government survey was lost, and that the corner located by respondent's survey, on a direct line between the undisputed section corners common to sections 28 and 33, should be accepted as establishing the disputed boundary line.
Appellant contends that this finding is against the preponderance of evidence, and we are of the view that appellant is correct in this contention. The quarter corner claimed by appellant is located 1.85 chains north of the corner claimed by respondents, which surveyor established on a direct line and at proper distances between the known section corners. The rule that this court will not disturb findings of a trial court, unless the same are clearly against the preponderance of the evidence, is so well settled that a citation of authorities to support it is unnecessary. Randall v. Burke Township, 4 S. D. 337, 57 N.W. 4; Unzelmann v. Shelton, 19 S.D. 389, 103 N.W. 646; First Nat. Bank v. McCarthy, 18 S.D. 218, 100 N.W. 14. The regulations governing surveys of public lands require a quarter section corner to be marked on an east and west line by a mound and two pits, one east and the other west of such mound. It is absolutely undisputed that a mound and two pits corresponding to the government regulations was observed, and existed undisturbed, at or in the vicinity of the point claimed by appellant, as early as and since 1885, and until 1912, when it appears to have been partially obliterated by plowing or other means.
The existence of such a corner is shown by an abundance of undisputed evidence. It is conceded that no corner or indication of a government quarter corner ever existed on the direct line between the section corners. It is undisputed that no other corner or indication of a government corner was ever observed or found anywhere in the vicinity of the mound and pits claimed by appellant as the original corner. The genuineness of this corner is unimpeached, save by some slight divergence in the testimony of the witnesses as to its exact location, and by the field notes and plat of the original survey, which purport to locate the quarter corner on a straight line between the section corners, and by the existence of certain early landmarks in the way of fences north and south. Such fences are at different distances east from the corner, and are not themselves in alignment. The record is silent as to who built them. It is not claimed that they were built by appellant. Nearly all of the numerous witnesses, both of appellant and respondents, testified to having seen such a corner as that described by appellant at some time, and we think were substantially agreed as to its appearance and location. The physical existence of such a corner ever since 1885 is, we think, established beyond question, and the clear preponderance of the evidence favors the conclusion that it is an original government corner, erected by the government surveyors who made the survey in 1873, about 12 years before it was first observed by two of appellant's witnesses.
The remaining question of inportance is whether the finding and conclusion of the trial court that appellant should be held estopped from claiming the land in controversy by reason of laches and acquiescence is sustained by the evidence. It is clear that neither plaintiff nor defendants ever intended to claim any land outside of or beyond the lines established by the original government survey, or outside of the true boundary line between their respective quarter sections. The only controversy is as to the location of the quarter section corner. The question of title by adverse possession for 20 years under the statute is not involved. As a general rule possession is not adverse when the parties intend to claim only as far as the true line. But the question of adverse possession may be conclusively determined by the length of time during which there has been acquiescence in a disputed boundary. When such acquiescence continues during the statutory period prescribed as a bar to re-entry, title may be acquired through acquiescence alone. The rule that the presumption of an agreement fixing a division line is conclusive, where both parties have been in possession and use of their respective lands up to a dividing line marked by visible objects, such as a fence, is correlated to the rule of adverse possession, and is distinct from the rule of estoppel by acts of conduct. Such possession for the statutory period barring re-entry is conclusively presumed to be adverse, and the right is barred by the statute,...
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