Seybold v. Burke

• Decision Date: 03 October 1961
• Citation: 14 Wis.2d 397,111 N.W.2d 143
• Parties: Edward H. SEYBOLD, a/k/a Edward Seybold, Appellant, v. Beatrice BURKE et al., Respondents, William Glassner et al., etc., Defendants.
• Court: Wisconsin Supreme Court

Page 143

111 N.W.2d 143

14 Wis.2d 397

Edward H. SEYBOLD, a/k/a Edward Seybold, Appellant, v.Beatrice BURKE et al., RespondentsWilliam Glassner et al., etc., Defendants.

Supreme Court of Wisconsin.

Oct. 3, 1961.

Action to quiet title and, among other things, determine the boundary between the land of plaintiff, Edward Seybold, and the land of defendant, Beatrice Burke.

The lands involved are adjoining parts of government Lot 3 in the southeast quarter of section 14, township 42 north, range 5 east.Lot 3 is bounded on the west by the north-south quarter line of the section, and on the southeast by the shore of Spider lake.The east-west quarter line crosses Lot 3, north of the lands involved.

Calvin Doriot owned Lot 3.In 1915he and his wife conveyed a parcel to Edward Seybold and his brother.Edward subsequently acquired the brother's interest.The westerly boundary was described as 'Beginning at a point 150 feet east of N. & S. Quarter section line on Spider Lake; thence north parallel with 1/4 line 950 feet.'

In 1918 Doriot and his wife conveyed a parcel of Lot 3 to Mrs. Burke.It was described as 'beginning at the center of Sec. 14, Thence south on Quarter Line 1130 Feet to Shore of Spider Lake, thence east along shore of said Lake 150, Feet, thence North Paralel with said Quarter Line, 1130 feet, to the East and west Quarter Line. thence West on the east and west Quarter line to Center of said Sec.'

There seems to be no dispute as to the location of the center of the section, and as to the location of a point marked by a concrete monument 150 feet east of the center of the section on the east-west quarter line.The center of the section is the north end of the west boundary of Mrs. Burke's land and the point 150 feet east is the north end of the common boundary between the Burke and Seybold lands.

Seybold claims that these two parallel boundary lines bear south five degrees west from the center of the section and from the point 150 feet to the east.There was testimony, however, of one surveyor that the two parallel boundary lines bear south 1? , 55' east.The area in dispute is a triangle.Its apex is the point 150 feet east of the center of the section.The westerly side is a line bearing south 5? west, the easterly side is a line bearing south 1? , 55' east, and the third side is approximately 106 feet of the shore line of Spider lake.

Seybold testified that he had placed several concrete monuments in 1917.One of these monuments is at the point accepted by all as the north end of the common boundary, and another one is at the southerly end of the boundary line as he claims it to be.He testified that in about the same year, he built a fence alone that line.Other witnesses corroborated the existence of the fence at certain periods, and others, including Mrs. Burke, testified that there was no fence.

The area involved is apparently covered with brush.There are no improvements on the Burke land nor on the disputed area.Many years ago the Seybolds built a cabin and other improvements east of the disputed area.

The court found that the true boundary bears south 1? , 55' east; that there was no evidence that Mrs. Burke had acquiesced in and different boundary; that there had been a fence alone at least a part of the line claimed by Seybold but 'that there is no satisfactory evidence that the fence constituted a substantial enclosure or that it was in existence for a period of twenty years so as to constitute evidence of adverse possession in favor of the plaintiff and that over a period of over forty years the old fence after having been built, was not maintained and was allowed to go down in ruin, and did not constitute an enclosure.'Judgment was entered accordingly on September 30, 1960, and amended December 14, 1960.Plaintiff Seybold appealed from the judgment except insofar as it quieted title in him.

Defendants Stuart, who appeared in this court as respondents, own land west of Mrs. Burke and claim that the boundary between them is the north-south quarter line as found by the circuit court.

Further facts will be referred to in the opinion.

O'Melia & Kaye, Rhinelander, for appellant.

Forest W. Rodd, Rhinelander, for respondent Burke.

Everis H. Reid, Hurley, Wright & Zinn, Ironwood, Mich., of counsel, for respondents Stuart.

FAIRCHILD, Justice.

1.The boundary described by the deeds.The circuit court found that the true common boundary between the Burke and Seybold lands is a line parallel to the quarter line as shown in the survey of F. R. Wincentsen, and that the quarter line bears south 1? , 55' east from the accepted center quarter corner of sec. 14.A map of the Wincentsen survey was attached to the judgment.

A government resurvey was made in 1929, presumably because several lakes were inaccurately meandered in the original survey.The certified copies of the original government survey, among the records of the register of deeds were received by reference, but not included in the record on appeal.No map of the 1929 resurvey appears to have been introduced.The surveyors who testified assumed that a particular point was the quarter corner at the center of sec. 14.There was no testimony as to how its location had been determined, and all the parties to the action apparently accepted it as correct.Upon the record made in this action, it is proper to presume that the point accepted as the center is at the intersection of the northsouth quarter line (connecting the mid-point of the north line of the section with the mid-point of the south line), and the eastwest quarter line (connecting them mid-point of the west line of the section with the mid-point of the east line).¹

Wincentsen, the county surveyor, testified that he made a survey in 1948 for the owner of other land.He located a point on the ice of a lake which he treated as the quarter corner on the south line of sec. 14.He ran a line from that point to the assumed center quarter corner.He determined that this line had a bearing of south 1? , 55' east (mean magnetic bearing adjusted for declination).He apparently determined the quarter corner on the lake by doubling the distance from the southwest government corner (which he found) to the one-eighth corner determined by another surveyor.He also found the southeast government corner of the section and measured the distance from the southwest to the southeast corners.He found that the point he treated as the quarter corner was eight feet west of the exact mid-point of the south line, but the resulting error in the quarter line, swinging it a little to the west, was favorable to Seybold.

Assuming as we do for the purpose of this action that the point he assumed as the center quarter corner was on the northsouth quarter line, the line he ran from the center point to the mid-point of the south line of the section was sufficiently shown to be the quarter line referred to in the Doriot deeds.

Of course the 1929 resurvey occurred after the Doriot deeds, but there is no evidence that it located the section corners at different points from those in the original government survey.It was the duty of the government surveyors in 1929 to re-establish the original corners.²It must be presumed in the absence of evidence to the contrary that the surveyors performed their duty.³

One of Mr. Seybold's witnesses, surveyor Kowalke, was called to testify as to the location of Mr. Seybold's fence in 1955.He had been in the area while making a survey for an owner of land west of the quarter line.He testified on cross examination that he had found the southwest and southeast government corners of sec. 14, located the mid-point of the south line on the ice, and run a line from the mid-point to the assumed center of the section.The bearing of this line was south 1? , 7' east.Wincentsen explained that the 48' difference between the bearing as determined by Kowalke and the one determined by himself might have been due to Kowalke having taken a solar observation to determine true north.

Plaintiff Seybold produced no evidence to support his claim as to the proper bearing of the north-south quarter line except as might be inferred from a certificate made in 1919 by D. H. Vaughan, county surveyor.In it he stated that in 1916 at the request of Doriot he made a survey of the description conveyed to the Seybolds.The location of a blazed tree and stake was testified to, apparently with the supposition that they were on the quarter line as determined by Vaughan although there is no reference to them in the certificate.Seybold testified that he set monuments where Vaughan set stakes showing the west boundary of the Seybold land.Vaughan's certificate may be competent evidence under sec. 59.64, Stats.It, however, shows no...