Rowell v. Weinemann

• Decision Date: 28 January 1903
• Parties: E. C. ROWELL, Appellant, v. SOPHIA WEINEMANN, D. E. LEARY, ELIZABETH DANIELS AND J. E. DANIELS et al, Appellees
• Court: Iowa Supreme Court

93 N.W. 279

119 Iowa 256

E. C. ROWELL, Appellant, v. SOPHIA WEINEMANN, D. E. LEARY, ELIZABETH DANIELS AND J. E. DANIELS et al, Appellees

Supreme Court of Iowa, Des Moines

January 28, 1903

Appeal from Clay District Court.--HON. W. B. QUARTON, Judge.

SUIT in equity to quiet plaintiff's title to the N. 1/2 of section 2, township 97, range 35. Defendants Daniels and Leary filed answer, denying plaintiff's ownership, and claiming title to the land in controversy as a part of the S 1/2 of section 2 of said township and range, pleading adverse possession, acquiescence in an established boundary, and an estoppel. On these issues the case was tried to the court resulting in a decree dismissing plaintiff's petition and quieting title in the defendants. Plaintiff appeals.

Affirmed.

Cornwall & Martin for appellant.

Buck & Kirkpatrick and Healy Bros & Kelleher for appellees.

OPINION

DEEMER, J.

Plaintiff is the owner of the north half of the section above described. He obtained title to the northeast fractional quarter of the section October 27, 1894, by deed from C. W Carpenter and wife, and to the northwest fractional quarter on December 10, 1895, through a sheriff's deed under foreclosure of a mortgage made by one Ostrander to the J. I. Case Threshing Machine Company, which mortgage was assigned to plaintiff's wife, and afterwards foreclosed by her. Defendants Daniels are the owners of the west 200 acres of the west 280 acres of the S. 1/2 of section 2, having acquired their title December 1, 1893, by conveyance from Sevdy and wife. Defendant Leary is the owner of the east 71.25 acres of the S. E. 1/4 and the east 80 acres of the west 280 acres of the S. 1/2 of section 2, having acquired his title April 24, 1894, from the plaintiff, Rowell. The real controversy is over the lines and boundaries between these tracts of land, and the case in most of its aspects is like Rowell v. Clark, 119 Iowa 299, 93 N.W. 280. The N. 1/2 of section 2 is fractional according to the government survey, but, if we follow the field notes and plat made by the government surveyors, we must hold that the quarter corners common to sections 2, 3, 4, and 5 and the section corners along the south sides of these sections are at or near where plaintiff claims them to be, and render a degree for him, unless it be for some of the affirmative defenses pleaded by the defendants, which have already been stated in a general way.

But it is well settled that the lines actually run by the original government surveyors become the true boundaries, and, if they can be ascertained through monuments erected by these officials, they will control; and courses, distances, measurements, plats, and field notes must all yield. Ufford v. Wilkins, 33 Iowa 110; Sayers v. City of Lyons, 10 Iowa 249; Root v. Town of Cincinnati, 87 Iowa 202, 54 N.W. 206. It is well known that the original surveys were faulty in many respects, and that they will not stand the test of careful and accurate retracing. It is not the purpose of such actions as this, or of any other, for that matter, to straighten out lines, or to remove unsightly crooks, however desirable such a result might be. Rollins v. Davidson, 84 Iowa 237, 50 N.W. 1061. Hence everything yields to known monuments and boundaries established by the government surveyors.

The primary inquiry in the case is, have the corners and boundaries as established by the government surveyors been sufficiently shown? It must be conceded that these monuments, which were artificial, have now to a large extent been obliterated; but in determining where they were we may consider not only the testimony of those who saw and identified them when they were discernible, but evidence of practical location made at a time when they (the monuments) were presumably in existence (Diehl v. Zanger 39 Mich. 601; Stewart v. Carleton, 31 Mich. 270); acquiescence of the parties concerned in supposed boundary lines (Joyce v. Williams, 26 Mich. 332); acts of public authorities and the well established boundaries of other contiguous tracts (Baker v. McArthur, 54 Mich. 139 ; Whalen v. Nisbet, 16 Ky. L. Rep. 52 ; Williams v. Tschantz, 88 Iowa 126, 55 N.W. 202); and reputation and tradition is also to be considered in some cases (Klinker v. Schmidt, 114 Iowa 695, 87 N.W. 661).

A number of surveyors were called, who had run the lines and boundaries in dispute, and who testified to ing found the original government corners common to sections 5, 6, 7, and 8, 3, 4, and 10, 2, 3, 10, and 11, and 1, 2, 11, and 12, and who stated that these corners were where defendants now claim them to be. Some of these surveyors were called to find out the difficulty with the lines, and one or more of them testified that they at that time found the field notes grossly incorrect. The testimony also shows that...