Sala v. Crane

• Citation: 221 P. 556,38 Idaho 402
• Parties: CATTINA E. SALA, Respondent, v. A. A. CRANE, O. R. WILLIAMS, and His Wife, MRS. O. R. WILLIAMS, Whose Christian Name is Unknown, G. W. YATES, and MRS. G. W. YATES, Whose Christian Name is Unknown, B. P. RICE and MRS. B. P. RICE, Whose Christian Name is Unknown, JIM PEDRO and CATHERINE PEDRO, His Wife, MARTIN BEDOGGIA and MRS. MARTIN BEDOGGIA, Whose Christian Name is Unknown, Appellants
• Decision Date: 07 December 1923
• Court: United States State Supreme Court of Idaho

221 P. 556

38 Idaho 402

CATTINA E. SALA, Respondent, v. A. A. CRANE, O. R. WILLIAMS, and His Wife, MRS. O. R. WILLIAMS, Whose Christian Name is Unknown, G. W. YATES, and MRS. G. W. YATES, Whose Christian Name is Unknown, B. P. RICE and MRS. B. P. RICE, Whose Christian Name is Unknown, JIM PEDRO and CATHERINE PEDRO, His Wife, MARTIN BEDOGGIA and MRS. MARTIN BEDOGGIA, Whose Christian Name is Unknown, Appellants

Supreme Court of Idaho

December 7, 1923

OFFICIAL PLAT - WHEN DISCREPANCY - MONUMENTED CORNERS CONTROL-LAW OF CASE-WHEN RULE DOES NOT APPLY.

1. Where public lands conveyed by patent are described by legal subdivisions and lot numbers, "according to the official plat of the survey of said lands returned to the General Land Office by the Surveyor General," and there is a discrepancy in such plat between the lines subdividing the section and the government corners as they exist upon the ground and are shown on the plat and described in the accompanying field-notes, the monumented corners will prevail as against a hypothetical dividing line protracted by the draftsman upon the plat in the surveyor-general's office.

2. The doctrine of the law of the case, as declared in a former appeal, will generally be followed, but this is not an inflexible rule, and where this court is a court of intermediate jurisdiction, its decision will be controlled by what it understands the holding of the court of ultimate conclusion to be under a like state of facts.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

Action to quiet title. From judgment for plaintiff, defendants appeal. Reversed.

Reversed and remanded, with instructions. Appellant to recover the costs of this appeal.

John P Gray and Fred D. Crane, for Appellants.

The lower court has found that the actual monuments in the field established at the time of the survey are still in existence those monuments are controlling. (Sec. 4804, U. S. Comp Stats. 1916; Land Department Regulations of June 1, 1909, secs. 16-20, 25.)

"The construction given to a statute by those charged with the execution of it is entitled to most respectful consideration and ought not to be overruled without cogent reasons." (Heath v. Wallace, 138 U.S. 573, 11 S.Ct. 380, 34 L.Ed. 1063.)

The supreme court of the United States has adopted the same view as the Land Department. (St. Paul & P. R. R. Co. v. Schurmeier, 7 Wall. (U. S.) 272, 19 L.Ed. 74; Higuera's Heirs v. United States, 5 Wall. (U. S.) 827, 18 L.Ed. 469; Ayers v. Watson, 137 U.S. 584, 11 S.Ct. 201, 34 L.Ed. 803; M'Ivers Lessee v. Walker, 4 Wheat. (U. S.) 444, 4 L.Ed. 611.)

The courts of the states recognize the same rule. (State v. Ball, 90 Neb. 307, 133 N.W. 412; Galbraith v. Parker, 17 Ariz. 369, 153 P. 283; Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066; Grand Cent. M. Co. v. Mammoth M. Co., 36 Utah 364, 104 P. 573; Harrington v. Boehmer, 134 Cal. 196, 66 P. 214; Keyser v. Sutherland, 59 Mich. 455, 26 N.W. 865; Woods v. West, 40 Neb. 307, 58 N.W. 938; Bullard v. Kempff, 119 Cal. 9, 50 P. 780; Seabrook v. Coos Bay Ice Co., 49 Ore. 237, 89 P. 417; Whiting v. Gardner, 80 Cal. 78, 22 P. 71; Foss v. Johnstone, 158 Cal. 119, 110 P. 294; Silver King Coalition Mines Co. v. Conkling M. Co., 255 U.S. 150, 41 S.Ct. 310, 65 L.Ed. 561.)

With regard to the law of the case, the better rule, and that more in accord with justice, is, that though ordinarily a question considered and determined on the first appeal is deemed to be settled and not open to re-examination on a second appeal, it is not an inflexible rule, and if the prior decision is palpably erroneous it is competent for the court to correct it on the second appeal. (2 R. C. L., sec. 188; City of Hastings v. Foxworthy, 45 Neb. 676, 63 N.W. 955, 34 L. R. A. 321; Missouri etc. Ry. Co. v. Merrill, 65 Kan. 436, 93 Am. St. 287, 70 P. 358, 59 L. R. A. 711.)

Whatever the opinion of the court may have been at the former hearing, since that time the supreme court of the United States has decided the case of Silver King Coalition Mines Co. v. Conkling M. Co., supra; that decision should be followed in this court.

Cyrus Happy and W. B. McFarland, for Respondent.

The former decision is the law of this case from which there is no appeal. (Lindsay v. People, 1 Idaho 438; Palmer v. Utah & N. Ry. Co., 2 Idaho 382, 16 P. 533; Hall v. Blackman, 9 Idaho 555, 75 P. 608; Ryan v. Rogers, 14 Idaho 309, 94 P. 427; Olympia Mining Co. v. Kerns, 15 Idaho 371, 97 P. 1031; Gerber v. Nampa & Meridian Irr. Dist., 19 Idaho 765, 116 P. 104; Beymer v. Monarch, 23 Idaho 292, 129 P. 919; City of Nampa v. Nampa & Meridian Irr. Dist., 23 Idaho 422, 131 P. 8; Phelan v. San Francisco, 20 Cal. 39; Heinlin v. Martin, 59 Cal. 181; Leese v. Clark, 20 Cal. 417.)

The survey and plat were at least sufficiently legal to enable the United States to convey to Cattina Sala what it offered in its plat to convey, and which is described in her patent in accordance with that plat. (Gazzam v. Lessee of Phillips, 61 U. S. (20 How.), 372, 15 L.Ed. 958; Sala v. Crane, 31 Idaho 196, 170 P. 92.)

A patent issued by the United States for land to which it holds absolute title cannot be collaterally attacked. (French v. Ryan, 93 U.S. 169, 23 L.Ed. 812; Quinby v. Conlan, 104 U.S. 418, 26 L.Ed. 800; Steel v. St. Louis Smelting Co., 106 U.S. 447, 1 S.Ct. 389, 27 L.Ed. 226.)

When a plat is made, accepted by the Land Department and filed in the proper offices of the Land Department, it not only becomes a public record of what it shows, but it is as monumental in its lines as is any other part of the survey; in fact, more so as to the subdivisions created thereby. (Wilson v. Chicago Lumber & Timber Co., 143 F. 705, 74 C. C. A. 529; Niles v. Cedar Paint Club, 175 U.S. 300, 20 S.Ct. 124, 44 L.Ed. 171; Chapman & Co. v. St. Francis Levee Dist., 232 U.S. 197, 34 S.Ct. 297, 58 L.Ed. 564; Green v. United States, 274 F. 145; Wall v. Utah Copper Co., 277 F. 55.)

WILLIAM A. LEE, J. Budge, C. J., and McCarthy and William E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This case involves a boundary line between the lands of appellant and respondent in Sec. 6, T. 47 N., R. 3 W., B. M.

The United States patented to respondent, with other lands, Lots 5 and 6, and to appellant, with other lands, Lot 4 in said section. The boundary line in dispute is the east and west line between Lots 4 and 5, which subdivisions comprise the west half of the northwest quarter of Sec. 6, Lot 5 being the southwest quarter of the northwest quarter of Sec. 6.

The section was officially surveyed in 1901. The survey began at the township corner between township 47 and 48 north and ranges 3 and 4 west, being also the northwest corner of 6 and the northeast corner of 1 in the said respective townships. A stone was set to mark this township corner, and the survey ran thence south on a line between said townships, the west line of 6 being coterminous with the east line of 1. The official field-notes of this survey show that 40 chains south of this township and section corner the surveyor:

"Set a basalt stone, 18x15x5 ins., 12 ins. in the ground, for 1/4 sec. cor., marked 1/4 on W. face, from which

"A pine, 20 ins. diam., bears S. 89 1/2 [degree] E., 161 links dist., marked 1/4 S 6 B T.

"A pine, 18 ins. diam. , bears N. 36 1/2 [degree] W., 187 links dist., marked 1/4 S 1 B T."

The quarter corner on the west line of Sec. 6, as established by the survey in the field, is thus marked by a stone monument and witness tree in place upon the ground, and its location 40 chains south of the northwest corner of the section and township is not controverted. The quarter quarter corner on this west line between Lots 4 and 5 is not marked.

The plat of the section prepared in the office of the surveyor-general shows the east-and-west half-section line protracted from the monumented corner on the east line of Sec. 6, which is equidistant from the northeast and southeast corners of the section, to a point on the west line 2.02 chains north of this west quarter corner monumented on the ground and described in the field-notes, and the boundary line between Lots 4 and 5 as intersecting the west line of the section at a point 17.98 chains south of the northwest corner of this section and township.

Appellant contends that the southwest corner of Lot 5 is at the stone monument located in the field as the west quarter corner of Sec. 6, and that the northwest corner of Lot 5 and the southwest corner of Lot 4 should be equidistant between the west quarter corner and the northwest corner of the section, or 20 chains from either of these monumented corners.

Respondent bases her right of recovery to the land in question upon the fact that the patent, after describing the lands patented to her as the SE.1/4 of the NW.1/4, the NE.1/4 of the SW.1/4, and Lots 5 and 6, in Sec. 6, contains the following: "According to the official plat of the survey of said lands returned to the General Land Office by the Surveyor-General," and that this qualifying clause means according to the boundary lines of the plat subdividing the section as such lines were protracted in the surveyor-general's office, and that the monumented corners, field-notes and all other landmarks appearing as a part of the description in the official plat must be governed solely by this protracted line in determining the true boundary between Lots 4 and 5.

The case was before this court on a former appeal (Sala v. Crane, 31 Idaho 191, 170 P. 92), wherein it is held that:

"Where a patent conveys land according to the official plat of the survey returned by the surveyor-general, the plat becomes an integral part of the description of the land."

The cause being reversed, a new...