Turnbull v. Schroeder

• Citation: 29 Minn. 49
• Parties: AMANDA TURNBULL <I>vs.</I> HERMAN SCHROEDER.
• Decision Date: 05 January 1882
• Court: Minnesota Supreme Court

29 Minn. 49

AMANDA TURNBULL vs. HERMAN SCHROEDER.

Supreme Court of Minnesota.

January 5, 1882.

Appeal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial.

Smith & Egan, for appellant, cited, Bell v. Morse, 6 N. H. 205; Allen v. Kingsbury, 16 Pick. 235; Milling v. Crankfield, 1 McCord, 258; Pitts v. Brown, 49 Vt. 86; Glover v. Shields, 32 Barb. 374.

H. J. Horn, for respondent.

CLARK, J.

This is an action of ejectment. The plaintiff is the owner of lot 5, in block 1, of Irvine's addition to St. Paul, as designated on the recorded plat thereof. The defendant is the owner of lots 8 and 9 in the same block. The following diagram represents the block, and the size and position of the lots in it, as shown by the plat:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The matter in controversy is the proper location of the line between lots 5 and 8. The defendant is in possession to the line found by measuring the width of lots 8 and 9, as marked on the plat, from the easterly line of the block, (which is an old, well-established claim-line, and the easterly line of the addition,) claiming that the line so found is the proper westerly line of lot 8. The plaintiff claims that such line cuts off a portion of the rear of lot 5, 13.73 feet on the northerly line, by 12.61 feet on the southerly line thereof; and her claim is founded upon the line between lots 5 and 8, as actually surveyed and staked out on the ground. The land embraced within the addition was originally owned by John R. Irvine, who, in May, 1857, caused it to be surveyed and platted as an addition to St. Paul, and the plat to be recorded in the office of the register of deeds. Such plat had a certificate of the surveyor thereon as follows: "I certify that the annexed diagram and description are correct, and as surveyed by me. St. Paul, M. T., May 25, 1857. GEO. H. BELDEN, Surveyor."

On the trial, evidence was given in behalf of the plaintiff, tending to show that in this survey the location of the lines was marked on the ground by oak stakes driven at the corners of the lots so as to project about two inches above the surface of the ground, and tending to show the points where those stakes were set; frequent surveys made while the stakes were standing having preserved the knowledge of their locality. It was also proved that there was not land enough in block 1 to fulfil the measurements as given on the plat; that the width of lots 8 and 9, measured from the easterly line of the block to the westerly line of lot 8, as the same was so actually staked out on the ground, was on Iglehart street 79 feet instead of 89.2, as marked on the plat, and at the rear of said lots, 66.52 feet instead of 81.2, as stated on the plat; and that the depth of lots 2, 3, 4, 5, 6, and 7, from Rice street to this line as so actually staked out, was 118.67 instead of 120 feet.

Lot 8 was conveyed by Mr. Irvine, in July, 1858, to one Fowler, from whom the defendant derives title; the deed of conveyance describing it as lot 8, in block 1, as designated in the plan or plat on record in the office of the register of deeds for Ramsey county. Mr. Irvine...