Smith v. Rich
| Decision Date | 01 November 1877 |
| Citation | 37 Mich. 549 |
| Court | Michigan Supreme Court |
| Parties | Philip Smith v. Abijah Rich |
Argued October 18, 1877
Error to Ionia. (Lovell, J.)
Trespass. Defendant brings error. Reversed.
Judgment reversed, with costs, and a new trial ordered.
Vosper Brothers for plaintiff in error. It is presumed that a government surveyor follows the requirements of the law in running section lines. Hamil v. Carr 21 Ohio St. 271.
W. O Webster for defendant in error.
Marston, J. did not sit in this case.
Rich sued Smith in an action of trespass. The real controversy between them concerns the location of the quarter section post between sections twenty-six and thirty-five in township eight north of range eight west: Smith owning land on section thirty-five and Rich land on section twenty-six which would be separated by the line running from this quarter post to the corner of sections 26, 27, 34 and 35.
There seems to have been no controversy regarding the actual location of the section corners by the government surveyor, and Smith claimed that the quarter post between sections 26 and 35 was located on a straight line between the common corner post of these sections on the east and the corresponding post on the west. Rich, on the other hand, claimed that the government surveyor actually located the quarter post about seven rods south of the straight line between the corners, and thereby fixed and determined the actual boundaries.
The field notes of the government surveyor were put in evidence, and from these it appears that he first located the section corners, and then run a random line from the west corner post between the two sections, striking the east line one chain and thirty links south of the corner post, whereupon he retraced his steps and set the corner post on the true line. Few indications appear to be now discoverable that the surveyor actually run out and marked the line between sections thirty-five and twenty-six, but the random line is still traceable, and it would seem plain from this and from the field notes that if the surveyor actually located the quarter post south of the random line instead of north of it as he evidently meant, and as duty required him to do, it was through some gross and very inexcusable blunder.
The most important evidence given on behalf of Rich consisted in three certificates of survey made by successive county surveyors, and which the jury on returning to their rooms were allowed to take with them. These certificates are given in the margin [1] in full, omitting the diagrams. As they were relied upon and received as statutory evidence in the court below, it becomes very important to see whether there is any such compliance with the statute, in the particulars covered by them, as would justify their being received at all. [1]
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The statutory provisions bearing on the case are the following sections of the Compiled Laws:
Sec. 587. "The certificate of the surveyor or his deputy, of any survey made by him of any lands in the county, shall be presumptive evidence of the facts therein contained, unless such surveyor or deputy shall be interested therein." [How. Stat. § 616.]
Although the section first recited does not point out the particulars to be embraced in the certificates which may be evidence under it, the clear intent, as we think, is that the certificate shall embrace every thing required in the record provided for in section 590: in other words, the record is only a record of the facts which appear with equal fullness in the certificate. The particulars are required as essential to give either the certificate or the record any real value, and to make them worthy of reliance for any purpose.
Looking at these certificates it is apparent at a glance that none of them complies with the statute, or was admissible under it. Neither of them appears to be a survey of any piece of land, but all of them, apparently, have for their object the location of the quarter post now in dispute. None of them shows for whom the survey was made, or the variation of the magnetic needle from the true meridian. Nicholson's is utterly bare of any of the particulars required by the statute, except that upon the diagram attached to it the time when it was made is entered. As no such papers could have been evidence at the common law, we need not go beyond pointing out these particulars to show the error of the circuit court in receiving them.
This error will render necessary a new trial, and we shall not review all the rulings of the trial court, many of which were upon points in respect to which considerable latitude must be allowed to the discretion of the court. One other error, however, was too important to be overlooked. The defendant requested that the jury be instructed that if they should find that the line between sections twenty-six and thirty-five was actually run by the government surveyor, then, inasmuch as the plaintiff claims that it was not a direct line, the burden of proof is upon him to show the fact. This was refused. The instruction requested was in substance this: that a party who claimed that the surveyor had not performed his duty, or had blundered in performing it, must take upon himself the burden of showing that fact. That is only reasonable, and is in accord with the general rule of presumptions.
The judgment must be reversed, with costs, and a new trial ordered.
Campbell and Graves, JJ. concurred. Marston, J. did not sit in this case.
This case is cited in Beeman v. Black 49 Mich. 598, 14 N.W. 560 which holds that the requirements of the statute relating to official surveys must be met before any presumptions can be based on the acts of the county surveyor; and that merely oral evidence of such acts does not give them any greater validity than the acts of any other surveyor.
It was held from the first that where monuments are missing it cannot be shown by parol that surveyor's marks have been found indicating different boundaries from those called for by courses and distances: Bruckner v. Lawrence 1 Doug. (Mich.) 19; Moore v. People 2 id. 420; but the quarter posts of a United States survey, when duly set, are established monuments and govern in preference to courses and distances: Britton v. Ferry 14 Mich. 53; the location of a section line, however, or of the starting point of a survey is a question of fact, and cannot be settled by the mere opinion of a surveyor as drawn from documents; least of all can an established boundary be disturbed on the strength of such an opinion. "The freaks of opinionated surveyors have led to much needless and vexatious litigation and disturbance, and it is much to be desired that they should be confined to their legitimate place as witnesses on fact and not on opinions, which lie beyond the domain of science": Stewart v. Carleton 31 Mich. 270; a surveyor's determination of a boundary is not final; all bounds and starting points are to be fixed by testimony Cronin v. Gore 38 Mich. 381; surveyors have no greater right than any other people to determine starting points and boundaries; they cannot disturb vested rights in land, or settle controversies as to titles; and their ex parte action is entitled to no special authority in regard to true lines and the fact of encroachment. Questions of title can be determined only in the judicial courts: Gregory v. Knight 50 Mich. 61, 14 N.W. 700; title to property claimed under a recorded plat cannot be unsettled by the testimony of a surveyor who had scaled the plat, that the scale was incorrect: Twogood v. Hoyt 42 Mich. 609, 4 N.W. 445; testimony as to boundaries need not be that of a surveyor or expert: Hoffman v. Harrington 44 Mich. 183, 6 N.W. 225; but a map of a government subdivision is inadmissible in evidence without the surveyor's field notes: Willson v. Hoffman 54 Mich. 246, 20 N.W. 37; a re-survey made after the monuments of the original survey have disappeared is for the...
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