See Ben Realty Co. v. Gothberg, 2168

• Decision Date: 21 January 1941
• Docket Number: 2168
• Citation: 109 P.2d 455,56 Wyo. 294
• Parties: SEE BEN REALTY CO. v. GOTHBERG ET AL
• Court: Wyoming Supreme Court

109 P.2d 455

56 Wyo. 294

SEE BEN REALTY CO. v. GOTHBERG ET AL

No. 2168

Supreme Court of Wyoming

January 21, 1941

ERROR to the District Court, Natrona County; HARRY P. ILSLEY Judge.

Action by See Ben Realty Company against M. J. Gothberg and others to quiet title to certain property. Judgment for defendants and plaintiff brings error.

Affirmed.

For the plaintiff in error, there were briefs by E. E. Enterline and Madge Enterline of Casper, and oral argument by E. E Enterline.

The action was brought to quiet title. From an adverse judgment, plaintiff prosecutes error. The testimony of witness Bartlett at a former trial was certified in accordance with Section 31-241, W. R. S. 1931. The transcript was excluded. The ruling of the court was based upon the case of Ivey v. State, 24 Wyo. 1, to which plaintiff excepted. A witness cannot be compelled to go out of his county to testify or give a deposition. Section 89-1713, R. S., Section 89-1801, R. S. The Ivey case does not support the court's ruling. Failure of defendants to produce Herbert L. Kennedy as a witness raised a presumption against defendants. Jones v. Wettlin, et al., 29 Wyo. 331. The findings, decision and judgment of the trial court in favor of defendants are not sustained by sufficient evidence and are contrary to law. Durrell v. Abbott, 6 Wyo. 265; Allen v. Houn, 30 Wyo. 186; Bentley v. Jenne, 33 Wyo. 1; Pregal v. Stickney, 34 Wyo. 324. There was no evidence tending to prove that defendants were ever in actual possession of the land in controversy, or that they had ever been in open, notorious, continuous, exclusive and adverse possession under claim of title for ten years. Their claim of title therefore cannot be upheld under the authorities. 1 R. C. L. Secs. 50 and 51; 2 C. J. Sec. 243; Fieldhouse v. Leisberg, 15 Wyo. 207; Boland v. The Colorado & Southern Railway Co., 23 Wyo. 395; Allen v. Lewis, 26 Wyo. 85; City of Rock Springs v. Sturm, 39 Wyo. 494; State v. Vanderkippel, 45 Wyo. 432. There are no equities in favor of parties seeking to acquire another's property by adverse possession. Myron v. Smith (Calif.) 4 P.2d 219. A careful review of the record in this case and application of the principles of law, under the authorities hereinbefore reviewed, we believe will clearly demonstrate plaintiff's right to recover in the action, and the trial court erred in rendering a judgment in favor of defendants.

For the defendants in error, there was a brief by R. R. Rose and H. B. Durham of Casper, and oral argument by Mr. Rose.

The law is well settled that boundaries of land entered upon under an original survey cannot be changed by a resurvey to affect title acquired under the original survey. Weaver v. Howatt (Cal.) 152 P. 926; Russell v. Maxwell, 158 U.S. 256; 39 L.Ed. 971; Bentley v. Jenne, 33 Wyo. 1; Porter v. Carstensen (Wyo.) 274 P. 1072; Cragin v. Powell, 128 U.S. 693. The point for decision is the determination of the lands fixed by the original survey. Plaintiff did not acquire title to the disputed land by adverse possession. The evidence tends to show that the defendants and their predecessors in interest have been in actual possession of the land in dispute since 1893. While an allegation of possession is sufficient in a suit of this character, the plaintiff cannot prevail against one who proves a better title. Durell v. Abbott, 6 Wyo. 265; Pregal v. Stickney, 34 Wyo. 324. The land occupied by Mrs. McNelley was held in trust for her by Matthew Montgomery under his patent of 1906. Porter v. Carstensen, supra. The testimony of Deputy U. S. Surveyor Bartlett was admitted in evidence in the last trial. The only material question of fact is the actual location of the closing corner and the quarter corner common to Sections 5 and 6. Defendants' failure to produce Herbert L. Kennedy, who testified in the former trial, is immaterial. It was shown that Mr. Kennedy was in Montana and could not be reached by subpoena. The decision and judgment below are supported by the evidence. Plaintiffs erred in basing their claim to the disputed area upon a resurvey which, according to their evidence, is only an approximation.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought by the plaintiff, See Ben Realty Company, a Corporation, against M. J. Gothberg and others to quiet the title to certain property in dispute, claimed by plaintiff to be part of the NW/4SW/4 of Section 5, T. 32 N., Range 79 West of the 6th P. M., except certain tracts already heretofore sold. The trial court found in favor of defendants, and plaintiff has brought this case here by petition in error. The parties will be referred to as in the court below.

One Montgomery received patent for the NW/4SW/4 here involved, and the plaintiff is his successor in interest. The Hawks and McNelly tracts, marked on the map, were patented to these parties respectively. The defendants are their successors in interest. The land in dispute contains 12.8 acres. The following map explains the situation in controversy herein.

[SEE ILLUSTRATION IN ORIGINAL]

The plaintiff claims that the shaded portion shown on the map is part of the forty acre tract above mentioned; that the north line thereof is the line marked "new line"; and that the west boundary thereof is the line marked "new line." The defendants claim that the lines marked "old line" are the true lines of the respective forty acre tracts, according to the survey of the United States Government made in 1883, duly approved by the Land Office; that the stone marked "C. C. stone" is the northwest corner of Section 5 and the northeast corner of Section 6, called the closing corner, and is located on the 8th Standard parallel, as fixed at the time of the survey; that a quarter corner between sections 5 and 6 was, in connection with that survey, placed where marked on the accompanying map, though now lost. Apparently a considerable amount of dispute existed as to the boundaries in the township in question, so in 1922 the Federal Government made a new survey, which, it is claimed, was, in the main, a retracement of the lines of the survey of 1883. The new boundary lines, marked on the accompanying map, were the lines located under the new survey, and plaintiff claims that these are the true lines. Under this survey the north closing corner between sections 5 and 6--that is to say, the northwest corner of Section 5 and the northeast corner of Section 6--is located 218.01 feet north of the old closing corner, and is claimed to be located on the true eighth standard parallel (called the new 8th standard parallel on the accompanying map); the quarter corner between the two sections is located, under this resurvey, about 200 feet northwest of what is called the old quarter corner. No claim to the land in dispute was made by plaintiff prior to the resurvey in 1922. On the contrary, part of the north portion of the land shaded on the map had been laid out as a park, called Gothmore Park, divided into lots as part of the SW/4NW/4 of Section 5 and SE/4NE/4 of Section 6, and had been sold by Mr. Scherk, manager and principal stockholder of the plaintiff company, as agent for Gothberg and Blackmore. These lots had as their south boundary the line marked "old line" running east and west and the extension thereof. Plaintiff lays no claim to these lots.

The contention of the defendants is supported by the testimony of the witness Wheeler, a civil engineer since 1910. The substance of his testimony is: He assisted one Kingdon, a civil engineer, in surveying the line between Sections 5 and 6, the sections here in question. They started at the closing corner above mentioned, on the so-called old line of the eighth parallel, and worked southward. That is the only closing line found in that neighborhood. Approximately half a mile to the south, they found a quarter corner between the two sections, located a little to the east and about 100-125 feet south of a cabin on the McNelly tract, as marked, approximately, on the accompanying map. The cabin still stood in 1919, has since disappeared, but its location can still be determined by some wreckage evidencing its site. The government field notes were used in connection with the survey. The witness made another survey in 1919, for the laying out of Gothmore Park. He was assisted by Worthington, Kennedy, and others. This survey is called the Wheeler-Worthington survey. It was harmonized with surveys made by the witness during the preceding ten years. The whole north line of the township in question, the entire south line of the township, part of the western boundary thereof, and part of the township to the east had been surveyed, so that the Wheeler-Worthington survey was really based on a survey involving approximately 200 miles. The survey of 1919 was started at the closing corner on the so-called old line of the 8th standard parallel, working south. The monument proper of the quarter corner found in 1907 had been removed, but evidences of the location were found. The closing corner above mentioned is, according to the witness, the true north corner between Sections 5 and 6, and is properly marked. It is, so the witness testified, located on the 8th standard parallel as determined in 1882, but that standard line has been changed several times since it was first located; it was attempted to be changed in 1900 by Owen, but his work was never approved. A new line for the parallel was adopted shortly before 1919--according to Mr. Atherly, in 1915 by Mr. Clark.

The contention of the defendants is also sustained by the testimony of Mr. Gothberg, one of the defendants, who had lived in the neighborhood since about 1883, and who testified that he saw the so-called closing corner a...