Mayor v. Burns
| Decision Date | 28 February 1893 |
| Citation | 19 S.W. 1107,114 Mo. 426 |
| Parties | The Mayor, Etc., of Liberty, v. Burns, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied 114 Mo. 426 at 434.
Appeal from Clay Circuit Court. -- Hon. J. M. Sandusky, Judge.
Affirmed.
D. C Allen for appellant.
(1) The circuit court erred and improperly and unsoundly exercised its discretion in overruling appellant's motion to reopen the case and permit Thomas B. Rogers to testify. 1 Thompson on New Trials, sec. 348; Walker v. Walker, 14 Ga 250; Hilliard on New Trials, sec. 62, p. 331; Worthington v. Hiss, 70 Md. 172; 19 Md. L. J. 919; 16 A. 534; 17 A. 1026; West v. Cameron, 39 Kan. 736; 18 P. 894. (2) The court erred in overruling appellant's motion for a new trial on the ground of surprise occasioned by the testimony of Reuben J. Stepp in reference to the alleged existence of the "stump" of a witness tree near the northeast corner of section 7. (3) The circuit court should have sustained appellant's motion for a new trial on the ground of the newly discovered evidence therein indicated and supported by the affidavits filed with it. Appellant only became aware of the new evidence after the trial, nor could he have become aware of it before. Goff v. Mulholland, 33 Mo. 203; Mills v. Sampsel, 53 Mo. 360; State v. Wheeler, 94 Mo. 252; Howland v. Reeves, 25 Mo.App. 458. (4) The court erred in giving respondent's instruction number 1.
Simrall & Trimble, G. F. Isgrig & W. M. Burris for respondent.
Plaintiffs sued in ejectment to recover possession of a strip of land two feet wide and about sixty-nine feet in length, lying adjacent to and along the east end of lot 8, in block 6, Allen & Burns' addition to the town of Liberty, which plaintiffs claim is a part of Lightburn street. Defendant claims that he was only in possession of lot 8 and occupied no part of the street. The controversy was over the true line between the east end of said lot and the west side of said street. The case was tried to the court without a jury and the finding was for the plaintiffs for the land claimed and defendant appealed.
As is usual in contests over division lines, there was great conflict in the evidence, particularly in the testimony of the surveyors, who differed as to locations of certain corners. We have looked through and examined the testimony carefully, as also the instructions, and can find no disputed legal principle of surveying involved in the case. The theories of surveying upon which the case was tried by defendant were adopted by the court in a series of carefully prepared declarations of law asked by him. One declaration of law asked by plaintiffs and given by the court is objected to by defendant as presenting an erroneous theory. This will be considered.
The disputed corner was the northeast corner of section 7. The evidence tended to prove that the witness trees and other government monuments of this corner had been destroyed and obliterated and the corner lost prior to 1871; that the county surveyor, during that year, established such corner in the manner provided by the statute and again in 1889 another surveyor of the county reestablished the corner which corresponded with that previously established. On the other hand plaintiff offered evidence tending to prove that a stump of an original government witness tree to this corner was found by a surveyor of the county in 1887 and from that the true corner was found. These facts were testified to in chief by a witness, R. J. Stepp, who was county surveyor for eight years. The case was submitted to the court and taken under advisement.
If the corner was lost by reason of the destruction or obliteration of the government monuments, then the corner established would place the improvements of defendant on lot 8; if the government corner was known from the stump of the witness tree, then the proper line therefrom would place the improvements on the street as charged.
Afterwards, some days and during said term, on March 1, 1890, defendant filed in the cause his motion and affidavit asking to be permitted to introduce newly discovered, material evidence, which was denied him. One of the grounds for new trial assigned by defendant in his motion was the discovery since the trial of new and material evidence.
I. The declarations of law given at request of the plaintiffs of which complaint is made declared, in effect, that when a witness tree of a section corner remains, then the corner is not lost; and if witness Stepp, while county surveyor, when surveying the ground afterwards platted, and known as Allen and Burns' addition, found the stump of the witness tree at the corners of sections 5, 6, 7 and 8 and from said stump ran a line, the proper distance and at the proper angle as called for by the field notes of the original United States survey, and thereby located the said corner, and from said corner so located, established the section line between sections 7 and 8, by running a line from the southeast corner of section 7 to said corner so located, and that a line running parallel to said section line, and at a distance of seven feet to the west of the same, would lie west of the east line of the barn of Peter B. Burns, then the finding will be for the plaintiff.
"In establishing section lines, the witness trees and monuments of the original surveys made by the United States government, no matter how inaccurate they may be, control over more recent surveys, though the latter may clearly show that the former were grossly erroneous." It was admitted that the west line of the street was seven feet west of the east side of section 7.
This declaration of law correctly declares the well settled principle that corners which are shown to have been originally established by government surveyors are conclusive and shall be accepted as the true corners, however inaccurate the work by which they were originally established may have been. If witness trees or other government monuments are known or found and identified, the corners to which they refer must be ascertained by reference to them, and not by the regulations provided for establishing lost corners. Climer v. Wallace, 28 Mo. 556; Knight v. Elliott, 57 Mo. 317. The identity of these government corners, or of the monuments bearing witness to them, can be shown by the testimony of anyone having knowledge of the fact and does not depend for proof upon the record of a survey by a county surveyor. Jacobs v. Moseley, 91 Mo. 457, 4 S.W. 135; Major v. Watson, 73 Mo. 661.
The fact that county surveyor Stepp may have made no record of the discovery of the stump of the witness tree, or reference to it when he surveyed the land in 1887, goes to his credibility as a witness, rather than the competency of his testimony. The omission from the record of so important a fact might well have been considered in determining the weight to be given his testimony; but it would not be sufficient to justify the court in excluding it altogether.
II. The objection most seriously urged by defendant is to the ruling of the court in refusing to reopen the case and permit him to introduce evidence in rebuttal to that of witnesses of the plaintiffs, which tended to prove that the northeast corner of section 7 as originally established by the government surveyors was known from the stump of a witness tree which had been recently discovered. In support of the motion to reopen the case, defendant filed his affidavit to the effect that after the trial he learned for the first time that he could prove by Thomas B. Rodgers surveyor of the county in 1871, and who made a survey of that date, read in evidence, that, in making said survey, it became necessary for him to ascertain the location of the northeast corner of said section 7, and...
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