Lemmon v. Hartsook

• Citation: 80 Mo. 13
• Parties: LEMMON v. HARTSOOK, Appellant.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

80 Mo. 13

LEMMON

v.HARTSOOK, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Saline Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

Wallace & Chiles for appellant.

Davis & Willis for respondent.

EWING, C.

This is a suit in ejectment to recover the south half of the south half of the southwest quarter of the northwest quarter of section 34, township 50, range 21. The petition is in the usual form. The answer is: 1st, A general denial; 2nd, That when the defendant bought and took possession of this land one Sarah Jeffries was the owner of the land now in controversy, and resided on the same; that she is plaintiff's grantor; that she and her agents pointed out to defendant a line between them as the true line; that defendant then built his fence thereon with her consent; that he has ever since owned and cultivated and claimed his said land to extend to said line; that said Sarah Jeffries agreed that said line should be the true line between them; and that, with her knowledge and without her objection, defendant made valuable improvements thereon; 3rd, That by acts and agreement of said Sarah Jeffries she and her grantees are now estopped from denying this line and claiming any land beyond it.

It was agreed on the trial that the parties claimed title from a common source, one Asa Finley. Plaintiff then introduced N. B. Ross, the county surveyor of Saline county, who testified that he surveyed the land for Albert Sims, and said: “I found no remains or evidence of the northwest corner of section 24, nor any quarter section corner established by the government on the west or east line of the section, nor any center corner to said section 24; most of the government corners on said section were established. I first established a monument at the northwest corner of said section, by running a line from the southwest corner of section 24, where I found a stone corner, said to have been placed there by Duggins, a former surveyor; two miles north to the northwest corner of section 13, where I found a government corner, said to be placed there for the northwest corner of section 13; then I corrected the line back; I then commenced at the northwest corner fractional section 23, where I found a stone said to be a government corner and ran east two miles to the northeast corner of section 24 and found government corner, the stump of a bearing tree, and corrected back; I then located the northwest corner of section 24. I had two methods for locating a lost section corner; one was to have placed it at the intersection of the two lines I thus run; and the other is to subdivide the north and south line and locate it at the middle point. By which one of these methods I located said corner, I do not know. I then established the quarter section corner on the west line of said section 24 at a point equi-distant from the southwest corner of said section and the northwest corner as established by me in this survey; the quarter section corner thus established is south of Mr. Hartsook's fence that runs between him and Lemmon, but I don't know the distance; in running the east and west and north and south lines to establish the lost section corner to the northwest of section 24, I ran each line the length of two miles, and on these lines I found no government monuments, or those of any other surveyor, and of course was governed by none, only those from where I started and ended the lines; I found a stone by the side of Mr. Hartsook's fence on the west line of section 24, but it was so far out of the way I did not recognize it as a corner; I made several attempts to survey this quarter section, some three times, and placed the corner nearly at the same place each time; my instrument was out of fix, and I sent it off and got another one which I used the last time; I also established a corner at the center of section 24, as shown in my plat, and from this center corner I ran a line west to the quarter section corner established on the west line of said section, and this last line run divides the land of Lemmon and Hartsook.”

Plaintiff then introduced Thomas Elliott, a former surveyor of Saline county, whose evidence tended to corroborate that of Ross, and other evidence tending to show that the corner fixed by Ross was the correct one.

Dennis H. Hartsook testified in his own behalf substantially that he bought his land in 1869; that Mrs. Jeffries then lived on the land adjoining him now in controversy; that there was no division fence between them; that in the spring of 1870 he told her he wished to build a fence, and she sent her son to show him the line, which he did, and where he thus built the fence; that he also showed defendant where Alexander established the center of the section; that the corner established by Ross is a considerable distance south of this, and that afterward he planted an orchard and made improvements on the land. Defendant then offered a petition for change of road signed by Mrs. Jeffries and others, and a plat of the survey, as follows:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

Defendant introduced Thomas C. Duggins, who testi. fied he was at one time county surveyor of Saline county, and as such had “established the southwest corner of section 13, which is also the northwest corner of section 24, by running a line from the southwest corner of section 24, north to the quarter section corner on the west line of section 13; government corners at both ends of this line being known at that time; corrected back, divided up this line run by me in proper proportions, and set corner to sections 13, 14, 23 and 24.”

Plaintiff then offered rebutting evidence, tending to impeach the testimony of the defendant in relation especially to his statement that Mrs. Jeffries' son had shown him the dividing line.

There was conflicting evidence as to the acts of Mrs. Jeffries and her statements concerning the dividing line, but this was substantially the testimony in the case.

The court then gave instruction number one for the plaintiff, as follows:

I. Section 24, township 50, range 21, within which the land in dispute is situated, is a section recognized by law as an interior section, and in such sections the legal rule for establishing lost quarter section corners is to establish the same at a point equi-distant from the corresponding corners of the section; and the true location of the southwest corner of the land claimed by plaintiff is at a point half way between the southwest corner and the northwest corner of said section 24; and the true line between the west half of the northwest quarter and the west half of the southwest quarter would be a straight line between said point last mentioned and a point on the east line of said section, equi-distant from or half way between the northeast and southeast corners of said section, provided the quarter section corner on the east line of said section 24, as established by government, is also shown to be lost.

The appellant insists that this instruction ought not to have been given, because it is misleading and erroneous, and there is no evidence upon which to base it. It attempts to lay down the rule by which lost quarter section corners may be established. The evidence at least tends to show that the true location of the southwest corner of the land claimed by plaintiff is at the place specified in the instruction, and the evidence is sufficient upon which to base it; provided it is the true and legal mode for ascertaining the lost quarter section corners.

The land in controversy is in a section recognized by law as an interior section. The laws of the State, (R. S., § 7403,) prescribe the mode of ascertaining lost corners, and it is upon this statute the appellant has attempted to base his fourth instruction, and insists the judgment must be reversed because of its refusal. But the learned counsel for the appellant seems to have altogether overlooked the fact that the laws of the United States and the regulations thereunder prescribe and fix the manner of establishing lost quarter section corners, both interior and exterior. The 1st section of the act of congress, (3 U. S. Stat. at Large, 566,) amongst other things, provides: “And the corners and contents of half quarter sections * * shall be ascertained in the manner * * prescribed by the 2nd section of an act entitled ‘an act concerning the mode of surveying, etc.,” (2 U. S. Stat. at Large, 313,) “and...