Pickett v. Nelson

• Decision Date: 03 February 1891
• Citation: 79 Wis. 9,47 N.W. 936
• Parties: PICKETT v. NELSON.
• Court: Wisconsin Supreme Court

79 Wis. 9

47 N.W. 936

PICKETT

v.NELSON.

Supreme Court of Wisconsin.

Feb. 3, 1891.

Appeal from circuit court, Green county.

Trespass to try title brought by Augustus Pickett against William H. Nelson.Defendant obtained judgment.Plaintiff appeals.Dunwiddie & Goldin and P. J. Clawson, for appellant.

A. S. Douglas,( Fethers, Jeffris & Fifield, of counsel,) for respondent.

COLE, C. J.

The nature of this action can be learned by a reference to 71 Wis. 542, 37 N. W. Rep. 836, where the case is reported when here on a former appeal.The judgment was then reversed, and the cause remanded for a new trial.As said by Mr. Justice CASSODAY then, in the opinion, the real controversy is as to the true line between the lands owned by the parties to the action.They were owners of adjoining farms.The plaintiff originally purchased the fractional lots comprising the N. W. 1/4 of section 6, containing, according to his deed, 161 54-100 acres.The defendant claims under parties who orginally owned fractional lots comprising the N. E. 1/4 of the same section, which, according to the deeds, contain 174 86-100 acres.The plaintiff afterwards acquired title to 74 acres off the west side of the lots in the N. E. 1/4, and the controversy is as to the east line of this 74 acres thus acquired.The question could readily be determined if the corners of section 6, as originally established by the surveyors under the general government, could be found with certainty.But there is a doubt as to where they were located, as some of the monuments at the corners of the section cannot be found.The surveyors who made surveys to find the section corners, and the true quarter line between the N. E. 1/4 and N. W. 1/4, disagree somewhat as to where the corners of the section were located, except as to the southwest corner, which is a known corner.Especially did they disagree as to the true location of the north and south quarter-section line between the N. E. 1/4 and the N. W. 1/4 of the section.By surveys made by several surveyors from the field-notes of the original surveys, there is no very great variation in running the quarter-section line, still there is some disagreement.Of course, if the corners as marked in the original surveys can be ascertained and found they will be controlling, and will determine where the quarter-section line must be located.If the corners cannot be ascertained with absolute certainty, yet, if from the known existing monuments, bearing trees, field-notes, and other means, the location can be ascertained with reasonable certainty, that will be sufficient.In view of the facts found by the jury on the last trial, the court was amply justified in giving a judgment for the defendant.There were 20 questions submitted to the jury by the court, and these questions were answered, generally, favorably to the defendant's claim, and also there was a general finding in his favor.The plaintiff moved for a judgment on the said verdict, and also to set aside most of the answers of the jury to the questions submitted.These motions were denied, and, as we think, properly so.There is no reason or ground for claiming that, upon the facts found in the special verdict, the plaintiff is entitled to a judgment for damages for the alleged trespass, and the general finding is directly and positively against his claim.It would be idle to discuss the evidence upon which the findings are based, and we shall not do so.It is sufficient to say there is abundant testimony to support the verdict, which is conclusive as to the facts found therein.Do these facts show that the judgment is correct?We are clearly of the opinion that they do.

When the cause was here on the former appeal, it was contended that the evidence showed that the adjoining owners had agreed upon and adopted a line between their farms as a permanent boundary; that, in the spring of 1868, the plaintiff and Wemple, who had then a contract of purchase from Irion, the owner of the legal title, being ignorant of the true location of the north and south line running through the center of the section, employed a surveyor by the name of West to establish that line; and that the line run by him was adopted and became a permanent boundary by the recognition and acquiescence of the parties, and was bindingupon them.But the jury found, on the last trial, that this line was not in dispute between the parties at the time, and that it was not uncertain or unknown, but that the surveys made by the general government, including the survey of section 6, and the field-notes of such surveys, afforded sufficient means for ascertaining the true location of the boundary line.If that were the case, the line could not be said to be doubtful or uncertain, within the rule of law.Hartung v. Witte, 59 Wis. 286. 18 N. W. Rep. 175.If the means were at hand to establish the line, and a competent surveyor could locate it, it was not uncertain in a legal sense.“That is certain which can be made certain,” is an old maxim of the law, and, as Mr. Justice ORTON says in the last case: “Under the statute of frauds it is not competent to make a boundary line by parol, except when the same is...