Roads v. Stangair

• Decision Date: 07 February 1906
• Citation: 84 P. 405,41 Wash. 583
• Parties: ROADS v. STANGAIR.
• Court: Washington Supreme Court

84 P. 405

41 Wash. 583

ROADS v. STANGAIR.

Supreme Court of Washington

February 7, 1906

Appeal from Superior Court, Clarke County; W. W. McCredie, Judge.

Proceedings by John Roads against James Stangair. From a judgment for defendant, plaintiff appeals. Affirmed.

H. C Leiser and E. M. Green, for appellant.

A. L Miller and W. W. Sparks, for respondent.

RUDKIN J.

This was a proceeding to establish a lost boundary under section 5667, Ballinger's Ann. Codes & St. A determination of the issue between the parties depends solely upon the true location of the northeast corner of the John Stangair donation claim; it being admitted that the respondent owns the land described in his complaint lying immediately to the north of the north line of said donation claim, and the appellant the adjoining land lying immediately to the south of said line. The testimony in the case is uncertain rather than conflicting. The respondent contends that the northeast corner of the Stangair donation claim was originally located 6.54 chains north of the northwest corner of the Wm F. Crate donation claim; whereas, the appellant claims that the original and true location was 9.61 chains north of the northwest corner of said Crate donation claim. The monument established by the United States surveyor at the corner in dispute would be the best and primary evidence of the true location, and would control over field notes or any other class of proof. Cadeau v. Elliott, 7 Wash. 205, 34 P. 916; Hubbard v. Dusy, 80 Cal. 281, 22 P. 214; Knoll v. Randolph (Neb.) 92 N.W. 195; Clark v. Thornbury, Id. 1056.

It is conceded that all trace of the original monument and survey has been obliterated, and no witness, excepting the surveyor Van Vleet, whose testimony will be referred to presently pretended to be able to identify the location of the original corner. The respondent offered in evidence a certified copy of the field notes on file and of record in the surveyor general's office of this state, and it is apparently conceded that a survey made in accordance with these field notes will establish the disputed corner 6.54 chains north of the northwest corner of the Crate donation claim, as contended for by the respondent. 'Of course, if the location of the corners by the original government survey can be ascertained, they are not to be moved, but will control all other surveys; but when the marks of the government survey have been obliterated, and the location of the corners by that survey cannot be established by witnesses who know where they were located, resort must be had to other evidence, and, in the absence of any other proof, the measurements indicated by the field notes of the government survey must control.' Clark v. Thornburg, supra. Such is the case here. The appellant, on the other hand, offered in evidence the field notes kept by the deputy United States surveyor, who made the original survey. These field notes were received in evidence, over objection. According to them it is apparently conceded that the disputed corner would be located 9.61 chains north of the northwest corner of the Crate donation claim as contended for by the appellant. In fact the controversy over the boundary in question seems to have arisen largely by reason of a survey made from these...