Scott v. Williams

• Decision Date: 06 October 1906
• Citation: 74 Kan. 448,87 P. 550
• Parties: SCOTT v. WILLIAMS.
• Court: Kansas Supreme Court

87 P. 550

74 Kan. 448

SCOTT v. WILLIAMS.

Supreme Court of Kansas

October 6, 1906

Rehearing Denied Nov. 10, 1906.

Syllabus

One who has title to a certain quarter section of land, and by mistake as to the boundary line occupies a strip of land in an adjoining section owned by another, without any intention to take and hold land beyond the section line, or to claim land which does not belong to him, will not acquire title to such strip by adverse possession.

[Ed Note.-For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 370-378.]

A volume of the records of permanent surveys of the county surveyor, forming a part of the public records of the county, is not discredited as evidence because it may contain an original paper of a survey, instead of a copy of such paper.

Error from District Court, Sumner County; C. L. Swarts, Judge.

Action by Josiah Scott against E. G. Williams. Judgment for defendant, and plaintiff brings error. Affirmed.

Ed. T. Hackney and F. A. Dinsmore, for plaintiff in error.

W. W. Schwinn, for defendant in error.

OPINION

JOHNSTON, C. J.

This was ejectment to recover a triangular strip of land lying along the section line between sections 2 and 3, in township 35 S., of range 4 W., of the sixth P. M. Josiah Scott was the owner of what is spoken of as the "northeast quarter of section 3," and which is composed of the south half of the northeast quarter, and of lots 1, 5, and 6 of section 3, and E. G. Williams was the owner of the west half of the northwest quarter of section 2. It appear that Arthur Scott settled upon lots 5 and 6 and the south half of the northeast quarter of section 3 in 1876, and obtained a patent to the land from the United States in 1882, and that in 1877 George W. Scott settled upon lot 1, the patent for which was issued to him in 1882. In 1881, George W. Scott conveyed this lot to Arthur Scott, and in 1890 Arthur Scott deeded lots 1, 5, and 6 and the south half of the northeast quarter of section 3 to the plaintiff, Josiah Scott, in whom the title has since rested. When the Scotts settled on this land, the cornerstone between sections 2 and 3 on the north line of the sections was not found. In 1878 Walton, a deputy county surveyor, undertook to survey a public road on the section line between these sections, and laid it along the east line of the strip in question, but the cornerstone was not found. In 1879, upon an agreement of the landowners in that region, a survey was made by Smith, the county surveyor, for the purpose of finding and establishing the corners and division lines, and he found the section line to be on the west side of the strip in question. Between these surveys there was left the strip in controversy, which was about 160 rods long, 4 or 5 rods wide at the south end, and about 12 rods wide at the north end. The following sketch will serve to indicate the location and extent of the tract:

(Image Omitted)

Notwithstanding the Smith survey, the Scotts occupied and farmed the land over to the Walton survey for more than 15 years. In 1903 the county authorities opened the road on the Smith survey, when Williams took possession of the strip and the present action was soon afterward brought by Scott. The verdict of the jury was for the defendant, finding that the government corner between sections 2 and 3 on the north line of the sections was in accordance with the Smith survey, and that Walton, who made the first survey, did not find the government corner. One of the points in the case, and, in fact, the principal one, was, Where was the true section line established by the government survey? Was it the one traced by the Walton survey, or by the later survey of Smith? The jury found, upon conflicting evidence, that the Smith survey was upon the true line, and that the strip is a part of the...