Thomas v. Mettel

• Citation: 168 N.W. 651,41 S.D. 322
• Decision Date: 22 July 1918
• Docket Number: No. 4104.,4104.
• Parties: THOMAS v. METTEL.
• Court: Supreme Court of South Dakota

41 S.D. 322

168 N.W. 651

THOMAS

v.METTEL.

No. 4104.

Supreme Court of South Dakota.

July 22, 1918.

Appeal from Circuit Court, Aurora County; Frank B. Smith, Judge.

Action by Harley Thomas against Peter D. Mettel. Judgment for plaintiff, and defendant appeals. Affirmed.T. J. Spangler, of Mitchell, for appellant.

Fellows & Fellows, of Plankinton, for respondent.

McCOY, J.

Plaintiff, claiming to be the owner in fee of the southwest quarter of section 29, township 104, north of range 65, in Aurora county, brought this action for the recovery of the possession of said premises from defendant, to determine the adverse claims of the defendant, to have adjudged that the claim of defendant thereto is inferior and invalid as against the title of plaintiff, and that defendant and all persons claiming under him be forever enjoined and restrained from thereafter claiming or asserting any right, title, or interest in or to said lands adverse to plaintiff. The defendant by way of answer alleged that he is the owner and in the actual possession of the southeast quarter of section 30, township 104, north of range 65, in Aurora county, and that defendant and his grantors have had actual possession of said premises and have improved the same and paid the taxes thereon for more than ten years prior to the commencement of this action, and that said described premises, the said southeast of said section 30, is the identical land which plaintiff claims to be the owner of as the southwest of said section 29. From these pleadings it will be observed that the controversy between these parties is whether or not the said quarter section of land is in fact the southwest of 29 or the southeast of 30 in said township and range.

[1] By some error in the original survey thereof said township 104-65 is not 6 miles square. It is 6 miles north and south and about 5 1/2 miles east and west. In Mason v. Braught, 33 S. D. 559, 146 N. W. 687, and Neumeyer v. Palmer, 39 S. D. 447, 164 N. W. 1025, the same error as to survey, was involved. The decisions in these cases involve purely questions of fact based on the evidence appearing in the record in each particular case, and it does not necessarily follow that the result should be the same in every case involving this erroneous survey, as each case must be determined only in the light of the evidence peculiar to that particular case. The following plat of township 104-65, based upon the original government survey, and evidence preserved in the record, will serve to illustrate the vital points in the controversy, the dots at section corners and along section lines representing original government mounds still existing, as shown by the evidence.

+---------------+
                ¦6¦5¦4¦3 ¦2 ¦1 ¦¦
                +-+-+-+--+--+--+¦
                ¦7¦8¦9¦10¦11¦12¦¦
                +---------------+
                

+--------------------------+
                ¦  ¦TOWNSHIP 104 - 65  ¦  ¦¦
                +--+-------------------+--+¦
                ¦18¦17  ¦16  ¦15  ¦14  ¦13¦¦
                +--------------------------+
                

+-----------------------------------------------------------------------+
                ¦TOWNSHIP LINE¦.9       ¦20         ¦21       ¦22       ¦23       ¦24   ¦
                +-------------+---------+-----------+---------+---------+---------+-----¦
                ¦             ¦30       ¦29         ¦28       ¦27       ¦26       ¦25   ¦
                +-------------+---------+-----------+---------+---------+---------+-----¦
                ¦             ¦35.86    ¦40.12 40.17¦91.63    ¦81.89    ¦65.23    ¦81.72¦
                +-------------+---------+-----------+---------+---------+---------+-----¦
                ¦31           ¦32       ¦33         ¦34       ¦35       ¦36       ¦     ¦
                +-------------+---------+-----------+---------+---------+---------+-----¦
                ¦37.40        ¦79.60 cms¦80.13 cms  ¦79.89 cms¦80.06 cms¦79.81 cms¦     ¦
                +-----------------------------------------------------------------------+
                

+------------------+
                ¦¦¦¦¦MOONEY CORNER¦¦
                +------------------+
                

[2] In the year 1888 the United States government, by patent, conveyed a quarter section of land in said township to one Caulum, as the southwest quarter of section 29, and by succeeding mesne conveyances the title so conveyed to Caulum became and now is vested in the respondent. In the year 1887 the United States government, by patent, conveyed a quarter section of land in said township to one Lenninger, as the southeast quarter of section 30, and by succeeding...