Mason v. Braught

• Decision Date: 21 March 1914
• Citation: 146 N.W. 687,33 S.D. 559
• Parties: MASON et al. v. BRAUGHT.
• Court: South Dakota Supreme Court

146 N.W. 687

33 S.D. 559

MASON et al. v. BRAUGHT.

Supreme Court of South Dakota

March 21, 1914

Appeal from Circuit Court, Aurora County; Frank B. Smith, Judge.

Action by Dean Mason and others against Fred Braught. From a judgment for plaintiffs, defendant appeals. Affirmed.

Spangler & Haney, of Mitchell, for appellant.

Fellows & Fellows, of Plankinton, for respondents.

POLLEY J.

This action is brought to determine the identity of a quarter section of land in Eureka township, in Aurora county. Respondent claims it by virtue of his title to the southeast one-fourth of section 4, and appellant claiming it by virtue of his title to the southwest one-fourth of the same section. The difficulty grows out of an apparent error in the original survey of the township, and the solution of the difficulty depends upon the correct identification of the northeast corner of the township; respondent claiming the corner to be at one particular point, while appellant claims it at another point approximately half a mile farther east. The southeast southwest, and northwest corners of the township are all fixed points and recognized by both parties to be correctly located. If the point claimed by appellant as the northeast corner is the true corner then the township is six miles square and contains 36 full sections, and respondent's land is half a mile east of the land he is claiming; while if the point claimed by respondent is the true corner then the township is only 5 1/2 miles long on the north side, and there is a considerable shortage in the acreage in the township as a whole.

The land in controversy was located as a tree claim, by one Eastman, in February, 1882, as the southeast one-fourth of section 4. He built a house just across the line in section 3 and resided there a number of years; he ploughed a 10-acre tract in the northeast corner of the tree claim and planted it to trees. In 1883 a schoolhouse was built at the southwest corner. Subsequently the title to the land as the southeast one-fourth of section 4 passed to respondent. The grove of trees, the Eastman house, and the foundation of the schoolhouse are all there yet, so there is no question about the situs of the land claimed by respondent. The premises were inclosed, occupied, and used continuously by Eastman and his successor, in interest, including respondent, without molestation or adverse claim, for more than 25 years. About 1909 appellant asserted his claim to the land as the southwest one-fourth of section 4, ousted respondent, and took forcible possession thereof.

That something was wrong with the survey of the township was discovered as long ago as 1888, or earlier. Parties having title to the land along the west side of the township undertook to take possession of the quantity of land called for by their patents. This resulted in conflicting claims to the same land, but they claimed they had the right to measure off their full amount of acreage using the west boundary line of the township as a base from which to make their measurements. This, of course, in the first instance at least, was not the correct method of determining such conflicts. Resort should be had, first, to the monuments placed at the various corners when the original government survey of the land was made, provided they are still in existence and can be identified, or can be relocated by the aid of any attainable data. But if this cannot be done and a survey becomes necessary, this must be made from the east and not from the west, boundary line of the township. The evidence shows that the boundary lines of the township had been surveyed and marked in 1869, and that the interior lines of the township had been surveyed in 1873. It is also clear that monuments consisting of stakes, mounds, and pits had been placed at some, if not all, of the section corners and quarter corners according to the government requirements in force at that time.

Eastman who located the land in conflict in 1882, was present and testified at the trial. He testified that when he made the location he started from a point known as the "Mooney" corner for the northeast corner of the township, and from there run west three miles; that there he found what appeared to be a section corner, marked by a mound and four pits, and was the corner of sections 3 and 4 on the township line. From there he ran south a mile, where he found a corner marked by a mound, in which there stood a stake, and four pits; that this was the southwest corner of section 3 and the southeast corner of section 4; that half way between these two points he found a point marked by a mound and two pits. From the southeast corner of section 4 he ran west half a mile, where he found a mound and two pits. This he took for the south quarter corner of section 4, and used as the southwest corner of his tree claim. This testimony relative to these various monuments was abundantly corroborated by the testimony of other witnesses who were there at and about the same time. One of these witnesses was a civil engineer and surveyor of 40 years' experience. He had had large experience as a government surveyor, and, as early as 1884, retraced the same lines testified to by Eastman and found them to be marked substantially as Eastman found them. It is true that other witnesses testified to a different state of affairs, but they testified mostly to conditions at a subsequent time; and it appears, beyond a doubt, that different surveyors had worked over the ground and that attempts had been made to correct the supposed error that existed in the original government survey. And it is also a fact that at the present time some of the corners that were marked by a mound and two pits in 1884, are now marked by a mound and four pits, some of the corners that were marked by a mound and four pits in 1884 are now marked by a mound and two pits, and at least one corner (the southwest corner of the tree claim) is now marked by a mound and two pits, and, within a few rods of there, a mound and four pits. It also appeared that, at some of the corners, the different pits around the same mound were made at different times.

An attempt was made by the county surveyor of the county to resurvey the township in 1889. The filed notes of this survey are in the record, but they are of little or no value as evidence. They do not show an attempt to relocate the lines of the original survey and to relocate and re-establish the section corners and quarter corners as originally located by the government survey, but rather to establish new and different corners to conform to the surveyor's idea of a correct survey of the township. The corners established by him are not only marked by mounds and pits, but a stone is placed in the various mounds, and these stones are so marked as to indicate the particular corners they occupy; but upon what data he based his survey or what point on the township boundary he used as his initial point does not appear. While, by the provisions of section 921, Pol. Code, his surveys are presumptively correct, section 926 requires him to: "Take care to observe and follow the boundaries and monuments as run and marked by the original survey." This he did not do, and, therefore, the monuments established by him cannot be allowed to control. White v. Amrhien, 14 S.D. 270, 85 N.W. 191; Arneson v. Spawn, 2 S. D. 269, 49 N.W. 1066, 39 Am. St. Rep. 783; Hanson v. Township of Redrock, 4 S. D. 358, 57 N.W. 11; Randall v. Burk Township, 4 S. D. 337, 57 N.W. 4; McGray v. Monarch Elevator Co., 16 S.D. 109, 91 N.W. 457.

But it is contended by appellant that the corner known as the "Mooney" corner is not the correct corner of the township, that the corner of the township should be at a point half a mile farther east than the "Mooney" corner; and that, if such point were used, it would bring the southwest quarter section of 4 a half mile farther east, and that the land now claimed by respondent as the southeast quarter of 4 would take the place of what is now the southwest quarter of 3, and that the land claimed by appellant would become the southeast quarter of 4, and thus make room for them both. On this contention the evidence is overwhelmingly against appellant and in favor of the respondent. In the first place, it appears that as far back as 1882 the "Mooney" corner was recognized by the old settlers and people in the vicinity as the true northeast corner of the township. At that time it was plainly marked by a mound and four pits, and in the mound stood a stake bearing inscriptions indicating a township corner. Two of the pits (the one at the south and the one at the east of the mound) were still visible at the time of the trial. The other two have been worn away by the road. This corner was used as the initial point for surveying and locating a considerable portion of the land in the four adjoining townships. A measurement from there along the township line east to the east boundary line of Aurora county shows it to be approximately 12 miles-the width of two townships-and there are two full townships between Eureka township and the east line of the county. Again, there is a line running southerly from the "Mooney" corner that is regarded as the east boundary line of sections 1 and 12 in Eureka township and along which are placed marks or monuments indicating the easterly corners and quarter corners of these two sections, and along which line there is also a well-defined traveled county road. It is also clear from the record that the land along this line in the township next east from Eureka is located relative to this same line. But it is claimed by appellant that the northeast corner of the township should be six miles due north of the southeast corner, while the "Mooney" corner is...