Randall v. Burk Tp. of Minnehaha County

• Decision Date: 24 November 1893
• Citation: 57 N.W. 4,4 S.D. 337
• Parties: RANDALL et al. v. BURK TP., OF MINNEHAHA COUNTY, et al.
• Court: South Dakota Supreme Court

57 N.W. 4

4 S.D. 337

RANDALL et al. v. BURK TP., OF MINNEHAHA COUNTY, et al.

Supreme Court of South Dakota

November 24, 1893

Syllabus by the Court.

1. A stipulation made on the trial of a case before the court, in a cause properly triable by the court, that the only issue to be tried and determined by the court is whether or not a certain specified resurvey was made in accordance with the government survey, and that no objection will be made to the sufficiency of the complaint, or the jurisdiction of the court, and that judgment may be rendered by the court in favor of the party it finds entitled thereto, does not constitute a submission of the case to arbitration, but only has the effect of limiting the issues to be tried.

2. When the only issue tried by the court was as to whether or not a certain survey corresponded with the original government survey, the specifications in the statement as to the particulars in which the evidence was insufficient to justify the findings are stated as: (1) It appears from the evidence that the resurvey was not made in accordance with the original survey; (2) it appears from the evidence that the corners of the sections and quarter sections of Burk township, as established by the resurvey, do not correspond with the original government corners. Held sufficient, under the facts of this case. Kellam, J., dissenting.

3. This court will presume, in the absence of a "further or additional abstract," that all the evidence material to the questions presented to the court, contained in the bill of exceptions or statement, is incorporated into the abstract, and that the bill of exceptions or statement contains all the evidence the parties or the trial court deemed material or essential to a proper determination of the questions presented by the specifications of error contained in the bill of exceptions or statement.

4. The last clause of section 5237, Comp. Laws, which provides that "any question of fact or of law decided upon trials by the court or by referee, may be reviewed when exceptions to the findings of fact have been duly taken by either party and returned," requires this court, in a cause tried by a court or referee, to review the questions of fact, as well as law, where proper exceptions have been taken in the court below.

5. On such review of the evidence, this court will presume that the decision of the trial court or referee upon the weight of such evidence is correct; and it is only when this court is satisfied that there is a clear preponderance of the evidence against such decision that such presumption will be overcome and the decision of the trial court or referee reversed.

6. The rule is well settled that on a resurvey of land originally belonging to the United States, and which it has caused to be surveyed under its authority, such resurvey must follow the boundaries and monuments, as run and made by the original government survey, if the monuments placed by the government in making the survey, to indicate the section corners and quarter section posts, can be found, or the places where they were originally placed can be identified.

7. The evidence in this case reviewed, and the conclusion arrived at by the court that there was a clear preponderance of the evidence against the findings of the court below, which found that the resurvey was in accordance with the original government survey, and the decision of the court below is reversed.

Appeal from circuit court, Minnehaha county; F. R. Aiken, Judge.

Action by Polina Randall and others against the township of Burk, in Minnehaha county, and others, for an injunction. There was judgment for defendants, from which, and an order denying a new trial, plaintiffs appeal. Reversed.

Bailey & Voorhees and Winsor & Kittredge, for appellants. Keith & Bates, for respondents.

CORSON J.

This was an action to enjoin the defendants from laying out and opening certain highways along section lines in Burk township, in said county, under a resurvey of said township in 1887-88 by one E. H. Van Antwerp, deputy county surveyor of said Minnehaha county. Judgment for defendants. A motion for a new trial was made and overruled, and the plaintiffs appealed from the judgment and order.

1. On the trial of the case, the following stipulation was entered into by the counsel of the respective parties: "It is stipulated and agreed, in open court, by and between the parties to this action, that the only issue to be tried and determined by the court is whether the survey made by E. H Van Antwerp, deputy county surveyor of Minnehaha county, of the line in Burk township, in the year 1887, is in accordance with the government survey thereof, and that no objection will be made to the sufficiency of the complaint for said purpose, or to the jurisdiction of the court. It is further stipulated and agreed that, if the court finds said survey by E. H. Van Antwerp to be in accordance with the government survey, he shall render judgment for the defendant, and, if he finds it is not in accordance with the government survey he shall render judgment for the plaintiffs." The learned counsel for the respondents contends that the stipulation amounts to a submission to arbitration; that the decision of the judge was final, and no appeal will lie therefrom, there being no agreement in the stipulation providing for an appeal by either party. But we are of the opinion that this view of the agreement cannot be sustained. The action was an equitable one, that was properly tried by the court without the intervention of a jury; and the effect of the stipulation, in our view, was to waive all technical questions, and try the case upon the merits alone. That this was the object clearly appears from the language of the stipulation. It is first stipulated that the only issue to be "tried and determined by the court is" as to the survey, and, second, "that no objection will be made to the sufficiency of the complaint for said purpose, or to the jurisdiction of the court." This language clearly indicates that it was the court that was to try the case, and render the judgment. No intimation is contained in the agreement of any intention to constitute the judge an arbitrator, or to take the case from the court; but, on the contrary, "all objections to the jurisdiction of the court" were waived, and the court was required to render judgment, not the judge, as referee or arbitrator. As it was the court that was properly trying the case without the intervention of a jury, we fail to see anything in the stipulation inconsistent with his continuing the trial as a court, and rendering judgment as a court. The cases from Pennsylvania cited by the learned counsel for respondents were common-law actions properly triable by a jury. In the case of Gwynn v. O'Hern, 72 Pa. St. 29, the action was on trial before a jury when the stipulation was made, and thereupon the jury was discharged, and the judge decided the case at his chambers, rendering an opinion, but no judgment. The stipulation was that the "court shall take the papers and evidence offered in the case to his chambers, *** and shall determine all questions of law and fact arising in the case, *** and the court shall file an opinion," etc. The supreme court says: "At the conclusion of the trial of the cause below, the counsel chose to take the case from the jury, by agreeing that the judge should take the papers and evidence given in the case to his chambers. *** This was nothing but a reference of the facts, as well as the law, to the judge, as an arbitrator." The court further says that "it was no longer a trial in due course of law, with the remedy by exceptions to the charge or writ of error. there was no charge to be excepted to, and no verdict. In its place, there was merely an opinion of the court upon the facts, without even the reservation of the right to except, and to sue out a writ of error." In Hughes' Adm'r v. Peaslee, 50 Pa. St. 257, the stipulation was that the case be submitted to "his honor, Judge Graham, upon the depositions and admitted facts; he to render such judgment thereon as he shall deem right and proper." This was also a common-law action properly triable by a jury. It is contended by the learned counsel for the appellants that, under the constitution and laws of Pennsylvania, courts are not authorized "to impair the rights of trial by jury, or to dispense with or to supply the use of any form of proceeding which shall be made necessary by any act of assembly," and that no provision is made by law for the trial of common-law actions, except by a jury. The opinion of the court in Gwynn v. O'Hern, supra, would seem to indicate that such was the fact. But, whether such is the fact or not, the cases are not sufficiently analogous to the case at bar as to have much weight in its determination. In Walworth Co. Bank v. Farmers' Loan & Trust Co., 22 Wis. 222, the stipulation was "that the action be referred to Hon. Wm. P. Lyon, as sole referee." It could not reasonably be claimed that this was other than a reference, as it was made to an individual by name, as "referee." We are of the opinion that in the case at bar the stipulation had only the effect to limit the issues to be determined by the court, and to eliminate from the case all technical objections to the proceeding.

2. The counsel for the respondents further contend that the question of the insufficiency of the evidence to justify the decision is not properly before this court, and cannot be considered by it, for the reason that the appellants have not, either in their notice of intention to move for a new trial, or in their bill of exceptions, specified the particulars in which the evidence is claimed to be insufficient. In the bill of...