Tucker v. Wyoming Coal Mining Company

• Decision Date: 03 November 1909
• Docket Number: 607
• Parties: TUCKER ET AL. v. WYOMING COAL MINING COMPANY
• Court: Wyoming Supreme Court

104 P. 529

18 Wyo. 97

TUCKER ET AL. v. WYOMING COAL MINING COMPANY

No. 607

Supreme Court of Wyoming

November 3, 1909

ERROR to the District Court, Sheridan County, HON. CARROLL H PARMELEE, Judge.

The action was ejectment brought by the Wyoming Coal Mining Company against Barton Tucker and Saloma Tucker. Verdict and judgment for the defendants. A new trial was granted on motion of the plaintiff, on the ground of newly discovered evidence, and from that order the defendants prosecuted error. The facts are stated in the opinion.

Affirmed.

Stotts & Blume, for plaintiffs in error.

The new evidence set forth in the motion and in the affidavits filed in support thereof is not so stated as to show that it would in any manner change the dividing line in dispute from where it was placed by the jury upon the trial. Applications for new trial on the ground of newly discovered evidence are not favored and should be granted with caution. (29 Cyc. 881; Canfield v. Jackson, 112 Mich. 120; Lampsen v Brander, 28 Minn. 526; In re. Calvert, 31 Mont. 461; Braithwaite v. Aiken, 2 N.D. 57; Moore v Estes, 35 O. St. 177; Gaines v. White, 1 S. Dak. 434; Wheeler v. Russell, 93 Wis. 135; People v. Sutton, (Cal.) 15 P. 86; Moore v. Philadelphia, 5 S. & R. 42; Baker v. Joseph, 16 Cal. 173; Hines v. Driver, 100 Ind. 315.) A case will be reversed, if a new trial is granted, when only cumulative evidence is shown to be discovered, and when no proper diligence is used in procuring the alleged new evidence. (Mowry v. Rabe, 89 Cal. 506; Gish v. Gish, 7 Ind.App. 104; Levitsky v. Johnson, 35 Cal. 41; Baker v. Joseph, 16 Cal. 173; Hines v. Driver, 100 Ind. 315.)

The new evidence must be of a decisive or conclusive character, or such as to render a different result reasonably certain. (Robbins v. Fowler, 2 Ark. 133; Robinson v. Veal, 79 Ga. 633; Lillie v. State, (Neb.) 100 N.W. 316; Moore v. Ewing, 44 Ga. 354; Dugan v. Daniels, 64 Ill.App. 90; Sheley v. Sheley, 47 S.W. 1071; Canfield v. Jackson, (Mich.) 70 N.W. 444; Whipple v. New York, 19 R. I. 587; Cleveland v. Long, 24 O. St. 133.) Evidence is cumulative which tends to prove a fact or issue upon which evidence was offered at the trial. (Olmstead v. Hill, 2 Ark. 346; Grubb v. Kalb, 37 Ga. 459; Beauchamp v. Sconce, 12 Mo. 57; Sheete v. Jones, 24 N.Y.S. 637; McGavock v. Brown, 4 Hump. 251; Kirby v. Waterford, 14 Vt. 414.) We are not unmindful of the rule that the matter of granting a new trial was to some extent within the discretion of the court, but that discretion must be reasonably exercised. This court is in as good a position as the trial court to determine whether the facts alleged in the motion and affidavits warranted the granting of a new trial, and unless it appears to this court that a different result would be reached by a new trial, and that reasonable diligence was shown, and that the evidence is not cumulative, then the order granting the new trial should be reversed. The principle of reasonable discretion must be applied together with the rule that new trials are not favored for newly discovered evidence, and with the other rules above stated. Upon the point of diligence there was nothing before the trial court except the affidavits, which are also before this court. The question of cumulative evidence is purely a question of law. This court, therefore, having the whole record before it is in the same position as the lower court to determine the various questions involved.

Lonabaugh & Wenzell, for defendant in error.

The evidence shows conclusively that there is a shortage in the section; that the shortage is on the east half, and it is to be determined how the shortage shall be distributed among the adjoining land owners. Government corners as established on the ground must prevail whether they agree with the field notes or not. (Hibbars v. Dusey, 22 P. 214; Ogilvie v. Copeland, 33 N.E. 1085.) Corners established by the government surveyors of public lands are conclusive as to the boundaries and divisions thereof, and no error in placing them can be corrected by surveys by individuals or a state surveyor. (Arbier v. Wallace, 28 Miss. 556; Goodman v. Myrick, 5 Ore. 65.) In determining the line between the quarters of the section, the quarter post established by the government surveyors must control in all cases where its location can be ascertained. (Vorman v. Dewey, 23 Wis. 530; Bretton v. Ferry, 14 Mich. 53.) Any difference in acreage should be equally divided among those affected thereby. (Jones v. Kimble, 19 Wis. 452.) The fact that the Coal Company had employed two competent engineers, neither of whom found the government corner stone referred to, was sufficient to show diligence in securing the necessary evidence. The newly discovered evidence was not merely cumulative, but had reference to a separate and distinct fact--a new and vital fact in the case, convincingly establishing the disputed corner. The evidence set out in the motion, therefore, was not cumulative in the sense referred to by the rule preventing the granting of a new trial for new evidence which is merely cumulative. (Wilson v. Platt, 41 Wis. 94; Guyot v. Butts, 4 Wend, 579; Parker v. Hardie, 24 Pick. 246; Oil Co. v. Morrison, (Cal.) 94 P. 589.)

It is a general rule that only on a clear abuse of discretion will the appellate court interfere. And it is sometimes held that the appellate court must be convinced beyond all reasonable doubt of the abuse of discretion before the action of the lower court will be reversed. (Smith v. Smith, (Wis.) 8 N.W. 868; Howell v. Howell, (Cal.) 37 P. 772; Hellner v. Brown, (Ida.) 12 P. 903; London v. Waddick, (Ia.) 67 N.W. 388; Patch v. Ry. Co., (N. Dak.) 63 N.W. 207; Biglow v. Sickles, (Wis.) 44 N.W. 761; Grant v. Grant, (S. Dak.) 60 N.W. 743; Sedan v. Church, 29 Kan. 190; Ry. Co. v. Fields, &c. Co., 85 P. 412; Linderman v. Nolan, (Okl.) 83 P. 796.) There was no abuse of discretion in granting the new trial. Viewing the evidence submitted on the trial most liberally it conclusively proves a shortage in the east half of the section, and this shortage should be equally divided. The jury was not convinced on the evidence that the corners testified to were the real government corners. A fact which definitely locates any one of these corners would in all probability be sufficient to warrant another jury in finding for the plaintiff. It is more than probable that evidence on the second trial will be so conclusive as to warrant a directed verdict for the plaintiff, and it is only a reasonable conclusion from the action of the trial court that it was satisfied a different result would be arrived at upon a new trial with the production of newly discovered evidence.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

This action was brought by the defendant in error against the plaintiffs in error to recover the possession of a certain strip of land claimed by both parties. The case was tried to a jury, resulting in a verdict and judgment in favor of defendants below. A motion for a new trial made by plaintiff below on the grounds that the verdict and judgment were contrary to and not sustained by the evidence and were contrary to law, was denied; and, within the time allowed by law, said plaintiff moved for a new trial on the ground of newly discovered evidence, which motion was sustained and a new trial granted. From the order granting a new trial, plaintiffs in error bring the case here on error.

It is urged, (1) that the motion does not sufficiently state the newly discovered evidence, (2) that it is merely cumulative, and (3) that it fails to show due diligence in discovering it before the trial.

It appears that the plaintiffs in error are the owners of the SE. 1/4 of the NE. 1/4 of Section 24, Tp. 57 N., R. 85 W. of the 6 P. M., in Sheridan County, and that the defendant in error owns the SW.1/4 of the NE.1/4 of said section, and that the matter in controversy in this case is the location of the true boundary line between these two tracts, and that depends upon the true location of the quarter section corner on the south side of the section. Mr. Huntington, the County Surveyor of Sheridan County, testified on the trial to having made a survey of the section but failed to find a properly marked corner which he could identify as the original quarter section corner set by the government surveyors, but that he found a pile of rock which in courses and distances closely corresponded with all original corners found and identified by him in that locality, except those on the east side of the section. This pile of rock is about 200 or 300 feet north and about 700 feet east of where the quarter corner should be by course and distance from the southeast corner of the section. The quarter section corner on the north, which is fully marked as he states, is likewise substantially the same distance east and north from where it should be by course and distance from the northeast corner, but otherwise corresponds in courses and distances from the other original corners found by him. He found no corners corresponding either in courses or distances from the corner at the northeast or the southeast of the section. From his survey he concluded that the pile of rock above mentioned was the true location of the original quarter section corner, and that the east half of the section was short, and subdivided it accordingly.

Mr Williams, a surveyor and engineer, also surveyed this section in June, 1907, and his testimony corroborates that of Mr. Huntington in nearly every particular as to the original corners found, as to courses and distances and that no corners were found in running west from the section corners on the east side of the section. He further states that he...