Tyler v. Haggart

• Decision Date: 21 February 1905
• Citation: 102 N.W. 682,19 S.D. 167
• Parties: ANNA DWIGHT TYLER, Executrix of the will of R. S. Tyler, deceased, et al., Plaintiff and respondent, v. JOHN E. HAGGART, Defendant and appellant.
• Court: South Dakota Supreme Court

19 S.D. 167

102 N.W. 682

ANNA DWIGHT TYLER, Executrix of the will of R. S. Tyler, deceased, et al., Plaintiff and respondent,

v.

JOHN E. HAGGART, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Roberts County, SD Hon. J. H. McCoy, Judge Affirmed Barrington & Lane, Leonard A. Rose, Purcell, Bradley & Divet Attorneys for appellant. W. F. Mason, Newman, Spalding & Stambaugh, Norville & Engerud Attorneys for respondents. Opinion filed February 21, 1905

CORSON, P. J.

This action was originally commenced by by Richard S. Tyler as plaintiff, who died subsequently to the findings and judgment in this action hereinafter referred to, and the present plaintiffs were substituted for the deceased under the statue. For convenience we shall designate the said Tyler as plaintiff in this opinion. The appeal in this case is from an order granting a new trial. The case was tried in the court below by the Honorable A. W. Campbell, at the time judge of the Fifth Circuit, who retired from office in January, 1902. The findings and conclusions of law were in favor of the defendant, and judgment was entered accordingly. Subsequently a motion for a new trial was made before the Honorable J. H. McCoy, who succeeded Judge Campbell as judge of the Fifth Circuit. The motion was granted, and from the order so made by Judge McCoy this appeal is taken.

The order for a new trial having been made by Judge McCoy, who took no part in the trial of the case, does not carry with it the presumption usually connected with such an order, namely, that the ruling of the trial court in granting or denying the motion would only be reversed in case of an abuse of the court’s discretion; and the principle to be applied to such a case is thus stated by this court in Sands v. Cruikshank,(1901), as follows:

“The reason of this rule is that one who has observed the appearance and demeanor of witnesses is in a better position to intelligently weigh the oral evidence than one who merely reads the abstract of it as preserved in a bill of exceptions. Where the reason is the same, the rule should be the same, but when the reason of the rule ceases so should the rule itself. Comp. Laws 1887, 4697, 4698. In this case the judge who granted defendant’s application did not preside at the trial, to whom the record was as cold and lifeless as it is to us. Braithwaite v. Aiken, 49 N.W. 419. He cannot be presumed to have reviewed the record from any better position than that occupied by the judges of this court. His decision should be given no greater force or effect than the opinion of an appellate judge.”

Following the rule thus laid down, we shall proceed to examine the case, and determine therefrom whether or not the learned circuit court erred in granting a new trial.

The controversy, as will, appear from an examination of the case, is as to the ownership of a triangular piece of land situated north of the north line of White Rock, in Roberts county. It is claimed by the plaintiff and respondent in this case that the line dividing sections 3 and 10 of township 128, range 47, ran north of the premises in controversy, and that consequently the same constituted a part of said section 10, owned by the plaintiff. It is claimed by the defendant and appellant that the line between the two sections ran south of the said premises, and consequently the same was a part of section 3. The court found, in substance, as follows: That on the 1st day of August, 1806, and for a long time prior thereto, John E. Haggart, the defendant and appellant, was the owner in fee simple of the southwest quarter of section 3, township 128 north, of range 47 west, in the county of Roberts; that on or about said day, and while he was so the owner of said land, the said appellant sold and conveyed a part of said premises therein described; that on the 8th day of July, 1891, and for a long time prior and subsequent thereto, Richard S. Tyler, deceased, the original plaintiff in this action, was the owner of certain land lying and being in the northwest quarter of section 10, in township 128, range 47; that on the 8th day of July, 1894, the plaintiff was the owner of the land described in the preceding finding, and platted and caused to be platted the town site of White Rock; that immediately north of said town site as so platted and laid out is a highway, and that the section line ran east and west between sections 3 and 10 through the center of the highway running along the north line of said town site of White Rock as platted and surveyed and located and constructed as set forth in the preceding finding of fact; that the quarter-section corner monument, by the evidence introduced in the case, as established and located by the government surveys, was at a point 40 chains east on a true line from the section corner monument between sections 3-4-9-10 in the center of the highway immediately north of the platted town of White Rock, and that the point at which such quarter-section monument was actually established by the government surveyor who made the survey of said land was 134.7 feet or thereabouts, south of the point at which plaintiff claims said quarter-section corner should be located; that defendant is the owner in fee simple and entitled to the immediate possession of all those tracts of land situated and being in the west half of the southwest quarter, and...