North v. Jones

• Decision Date: 12 December 1912
• Docket Number: No. 7,595.,7,595.
• Citation: 100 N.E. 84,53 Ind.App. 203
• Parties: NORTH v. JONES.
• Court: Indiana Appellate Court

53 Ind.App. 203

100 N.E. 84

NORTH

v.JONES.

No. 7,595.¹

Appellate Court of Indiana, Division No. 2.

Dec. 12, 1912.

Appeal from Circuit Court, Randolph County; Jno. W. Macy, Special Judge.

Action by Ebenezer S. Jones against William North. From a judgment for plaintiff, defendant appeals. Reversed for new trial.Smith & Moran, of Portland, Eichhorn & Vaughn, of Bluffton, and Caldwell & Parry, of Winchester, for appellant. Frank H. Snyder, Whitney E. Smith, Charles E. Schwartz, and E. E. McGriff, all of Portland, and A. L. Nichols, of Winchester, for appellee.

LAIRY, J.

This action was brought by appellee as plaintiff to eject appellant from a small parcel of land described in the complaint consisting of about .43 of an acre. At the time of the commencement of the action the plaintiff owned the E. 1/2 of the N. E. 1/4 of section 13, township 23 N., range 13 E. The defendant owned the S. E. 1/4 of section 12 in the same township and range, and also the E. 1/2 of the S. W. 1/4 of said section. Both sections 12 and 13 are bounded on the east by the range line. It thus appears that for a distance of 80 rods west from the range line the north line of plaintiff's land forms the south line of the lands of the defendant. The land in controversy as described in the complaint consists of a strip 80 rods in length, extending west from the range line and being 19.1 feet in width at the east and 9.5 feet in width at the west end. According to the averments of the first paragraph of complaint, this strip is located immediately south of and bordering on the line between section 12 and section 13, and according to the averments of the second paragraph it is located independently of the section line, and may be in either section, or partly in both. There was a verdict and judgment for plaintiff, and defendant prosecutes this appeal.

Appellee contends that the brief of appellant is not sufficient under the rules of this court to present any question for decision. It is true that appellant has waived some of the assignments of error by failing to present them properly in his brief; but the action of the court in overruling appellant's motion for a new trial is assigned as error, and some of the questions arising thereunder are properly presented and argued in the brief, and these will be considered.

The questions thus presented relate principally to the instructions. An intelligent discussion of the correctness and applicability of these instructions requires a brief statement of some of the facts as disclosed by the evidence.

At the time this controversy arose, the stake set by the government surveyors to mark the northeast corner of section 13 had been obliterated and the location was lost, and the line extending west therefrom to the north quarter corner of section 13 was in dispute. Appellant, before the suit was commenced, built a wire fence commencing at the range line near a stone known as the “Current stone,” which, as he claimed, marked the northeast corner of section 13, and extending west a distance of 40 rods upon what he claimed to be the section line and the southern boundary of his land. It seems to be conceded that this fence and a line extended west therefrom and on a line therewith marks the southern boundary of the land in dispute.

One of the questions of fact to which the evidence related was the location of the northeast corner of section 13 as fixed by the government survey and also the location of the line extending therefrom to the north quarter corner of section 13; appellant claiming that the Current stone marked the corner and that the fence erected by him was on the line, while appellee contended that the true corner was located some distance north of said stone and that the section line extended therefrom in a westerly direction to the north quarter corner of section 13.

[1] The northeast corner of section 13 as fixed by the government survey marks the eastern terminus of the east half of such line, the north quarter corner marks its eastern terminus, and a straight line connecting these two points marks the east one-half of said section line, the location of which is in controversy in this case. If the original stakes or monuments set by the government surveyors to mark these two points can be found, they control; but, if one or both of such monuments are obliterated or lost, the point of the former location of such monument or monuments must be determined from the evidence, and when so determined such points will mark the terminations of such line and will be controlling.

In the making of government surveys the township lines and the range lines are first run. The range lines are run north and south six miles apart, and the township lines are run east and west a like distance apart, thus dividing the state into congressional townships, or 36 sections each. When these range lines are surveyed, section corner posts are placed and properly witnessed at intervals of one mile, and quarter corners are also set and witnessed at points between the section corners and one-half mile distant therefrom. The section corners and the quarter corners so fixed in the survey of the range line constitute the corners and the quarter corners of the tier of sections immediately to the west of such range line. Sections 13 and 12 in which the lands of appellant and appellee are located are situated in the tier of sections immediately west of the range line, and the stake marking the northeast corner of section 13 and the southeast corner of section 12 was therefore located by the survey of the range line.

[2] The regulations of the Department of the Interior, which have the force of law, do not permit the interior subdivisions of the congressional townships to be made by the same surveyor who runs the township and range lines, and such interior subdivisions are made at a subsequent time and by a different surveyor. In making this subdivision the surveyor began at the southeast corner of the township and surveyed the east tier of sections first proceeding north. The south line of section 13 would thus be fixed by the survey of the north line of the section immediately to the south, and the stake set at the northwest corner of such section to the south would mark the southwest corner of section 13. In surveying section 13 the government surveyor would begin at the stake set to mark the northwest corner of the section immediately to the south and run north parallel to the range line for the distance of 40 chains and there mark and witness the west quarter corner post, then, continuing the line in the same direction 40 chains more, he would there set the stake for the northwest corner of section 13. From this point it was his duty to establish a line to the northeast corner of said section as established by the survey of the range line. This was done in the following manner, as shown by the field notes introduced in evidence: From the northwest corner east on random line between sections 12 and 13 forty chains set temporary post; thence east 79 chains and 70 links intersecting range line at 125 links north of post; from post at northeast corner of section 13 ran west on true lines 39 chains and 85 links and set and witnesses quarter corner post.

The evidence shows a stone now located at the northwest corner of section 13 and a stone at the north line of that section at the quarter corner, and there was evidence tending to show that these stones had been long recognized as marking the correct location of these corners as fixed by the government survey. As to these stones counsel for appellant, upon the trial of the case, made the following statement: “Let us say here that we will offer no evidence to disputeeither the stone marking the north quarter corner of section 13 or the stone marking the northwest corner of section 13. We don't want to do anything that will relieve you of making out your case as you want to make it, but we will say that we will offer no evidence to contradict either one of these two stones.” As heretofore stated, the location of the northeast corner of section 13 as fixed by the government survey was lost. For the purpose of fixing its location, several unofficial surveys had been made. Two surveyors testified that they ran the north line of section 13 by starting at the stone at the northwest corner of the section and projecting a straight line over the stone found at the north quarter corner to the range line on the east. The witness Charles testified that a line so projected intersected the range line at a point 12.62 feet north of the “Current” stone near the east end of appellant's fence, and, at a point opposite appellee's west line, the line so projected was 6.5 feet north of the wire fence; while the witness Clayton testified that a line so projected intersected the range line at a point 6.5 feet north of the east post of appellant's fence.

[3] As bearing upon this evidence, the court gave to the jury the following instruction: “No. 6. You are instructed that evidence has been introduced tending to establish a prolongation of the line from the northwest corner of section 13 to the middle section corner, and thence to the range line, which evidence tends to establish that such line would be 6 1/2 feet north of the wire fence recently built by the defendant, north, at the northwest corner of the Jones land and 12.62 feet north of the post at the east end of the fence recently built by the defendant, north. If the jury, after considering all of the evidence in the case, find and believe that said line is the north line of said section 13 at that point, and that the intersection of said line so projected and drawn, with the range line, marks the point where the northeast corner section stake was placed by the original government survey, then you may return a verdict for the plaintiff and that he is the owner of said described tract lying between said projected line and said wire...