Vaught v. McClymond

• Decision Date: 29 January 1945
• Docket Number: 8453.
• Parties: VAUGHT v. McCLYMOND.
• Court: Montana Supreme Court

155 P.2d 612

116 Mont. 542

VAUGHT v. McCLYMOND.

No. 8453.

Supreme Court of Montana

January 29, 1945

Appeal from Thirteenth District Court, Carbon County; Hon. Ben Harwood, Judge.

Suit by Dorothy Vaught against J. R. McClymond for possession of land along a boundary line and for damages, rents and profits wherein defendant cross-complained for possession of the land with damages and for rents and profits, tried to court without a jury. From a judgment for defendant, plaintiff appeals.

Judgment set aside and cause remanded with directions.

Robert C. Stong, of Billings, for appellant.

H. A Simmons and Hubert A. Simmons, Jr., both of Red Lodge, for respondent.

ADAIR Justice.

This action involves a boundary line between the lands of the plaintiff and those of the defendant and cross-complainant in section 26, township 4 south, range 24 east, M. P. M. Carbon county.

Plaintiff Dorothy Vaught, is the owner of the north half of the southwest quarter and the southwest quarter of the southwest quarter and cross-complainant, J. R. McClymond, is owner of the northwest quarter of section 26. The boundary line in dispute is the dividing line between the two quarters. The parties admit that plaintiff owns no part of the northwest quarter and that cross-complainant owns no part of the southwest quarter.

Cross-complainant contends that an east and west fence, which he built eight days before the commencement of this action, marks the boundary line between his quarter section and that of plaintiff, while plaintiff contends that the fence is located on her land and 309.54 feet south of the north boundary thereof.

The accurate location of the true boundary line between the northwest quarter and the southwest quarter of section 26, as created and established by the official United States survey thereof, will be determinative of the controversy.

The section was officially surveyed in 1890 and thereafter, by patents dated August 13, 1914 and March 22, 1915, respectively, the United States granted to Samantha E. Vaught certain described tracts, including among others all the lands in the west half of section 26 that are now owned by plaintiff and cross-complainant. In the patents, after the description of the lands granted, appear the words "according to the official plat of the survey of said lands returned to the General Land Office by the surveyor general." The patentee, Samantha E. Vaught, is the mother of plaintiff's husband, O. F. Vaught.

Commencing about 1914 the Vaught family farmed, as one unit, the land so granted including the west half of section 26 with no cross fence or other means of indicating the boundary line between the northwest quarter and the southwest quarter.

By deed dated October 22, 1940, there was conveyed to the cross-complainant, J. R. McClymond, the northwest quarter of section 26 "containing 160 acres more or less according to the United States government survey thereof."

About five months after he acquired title thereto, the cross-complainant engaged W. P. Burke, then county surveyor of Carbon county, to ascertain the boundaries of the northwest quarter and by survey, made on March 12, 1941, Mr. Burke located what he then "considered" the boundary lines of the quarter.

Thereafter, on March 31, 1941, cross-complainant informed plaintiff's husband, O. F. Vaught, that he intended to build a fence across the west half of section 26 on a line given him by Mr. Burke as the south boundary of the northwest quarter.

The proposed fence line ran through a tract of land which, according to the testimony of Mr. Vaught, had been farmed by him since 1914 and on which there was then growing a crop of winter wheat planted by him in the fall of 1940. Mr. Vaught protested, contending that Mr. Burke's survey was in error; that it erroneously placed the south boundary line of the northwest quarter a considerable distance to the south of the true dividing line between the two quarters, and that the proposed fence would enclose and take from plaintiff a strip of her ground lying in the north half of the southwest quarter.

In August 1941, W. P. Burke, at plaintiff's request, made a second survey for the purpose of locating the boundary line between the northwest quarter and the southwest quarter. After making allowance for an admitted mistake in the starting point and calculations made therefrom, Mr. Burke's second survey located the center of the section 309.54 feet north of where it had been placed by his first survey.

On September 17, 1941, cross-complainant built a fence running east and west on the line given him by Mr. Burke's first survey as the south boundary line of the northwest quarter. Cross-complainant also demanded of plaintiff, as the landowner's share, one-fourth of all the wheat harvested from the strip of ground lying north of such fence.

On September 25, 1941, being eight days after the fence was built, plaintiff commenced this suit for restoration of the strip of ground; for damages for withholding and for the rents and profits thereof alleging that the strip comprises the north part of the north half of the southwest quarter of which she is the owner.

By answer the defendant and cross-complainant, McClymond, admitted that he is the owner of the northwest quarter but denied the other allegations of the complaint and, by cross-complaint, alleged that about March 31, 1941, the plaintiff wrongfully entered into possession and ejected the cross-complainant from "The south 309.54 feet of the said Northwest Quarter of Section 26, Township 4 south, Range 24 east, M. P. M." The relief demanded was that plaintiff take nothing and that cross-complainant recover possession of the described strip of ground together with damages for the withholding and for the rents and profits thereof. Plaintiff's reply denied the allegations of the cross-complaint. The cause was tried to the court without a jury. Findings of fact and conclusions of law were made and filed and judgment rendered in favor of the cross-complainant, McClymond. By its findings and judgment, the trial court decreed the disputed strip of ground to be the south 309.54 feet of the northwest quarter and the boundary line between the northwest quarter and the southwest quarter to be the line indicated by Mr. Burke's first survey whereon cross- complainant had built his fence after this controversy arose.

The third finding of fact made by the trial court is to the effect, "That the true boundary line between said northwest quarter of said section 26 and said southwest quarter of said section 26 is on the line as alleged and contended by the defendant, J. R. McClymond, and as fenced by him on or about September 1, 1941."

Plaintiff has appealed from the judgment contending that the evidence fails to support the court's findings, conclusions and judgment as to the location of the boundary line and strip of ground in question.

The cross-complainant acquired and he holds the northwest quarter of section 26 "according to the United States government survey thereof." The deed of conveyance to him so specifies. When lands are granted according to an official plat of a survey, the plat itself, with all its notes, lines, descriptions and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and controls so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself. Pittsmont Copper Co. v. Vanina, 71 Mont. 44, 227 P. 46; Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566; Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872; United States v. Otley, 9 Cir., 127 F.2d 988; Ohlson v. Batterton, Mo., 230 S.W. 110; Read v. Bartlett, 255 Ill. 76, 99 N.E. 345. The original corners and lines of section 26 created and established by the government constitute the true and only boundaries of the designated quarter section. Goff v. Avent, 122 Miss. 86, 84 So. 134; Langle v. Brauch, 193 Iowa 140, 185 N.W. 28.

Congress has provided a system for the survey of public lands, and the boundaries and limits of the several sections and subdivisions thereof, including quarter sections, must be ascertained in conformity with the principles laid down in the federal statutes. See Sections 751, 752, 43 U.S.C.A.

Certified copies of the official plat as well as the field notes of the official government survey were received in evidence. They disclose that in 1890 the United States government caused a survey to be made of section 26 and the township of which it is a part; that section 26 is regular both in size and form, containing 640 acres and subdivided into four quarter sections containing 160 acres each; that the four corners of the section and the four quarter section corners were located at the time of the original survey and sand stone monuments of survey with appropriate markings thereon were set to mark each of the corners so located.

"A survey of public lands does not ascertain boundaries; it creates them." Cox v. Hart, 260 U.S 427, 43 S.Ct. 154, 157, 67 L.Ed. 332. "The quarter lines are not run upon the ground, but they exist, by law, the same as the section lines." Keyser v. Sutherland, 59 Mich. 455, 26 N.W. 865, 867. The location of corners and lines established by the government survey, when identified, are conclusive (Hickerson v. Dillard, Mo.App., 247 S.W. 801) and the true corner of a government subdivision of a section is where the United States surveyors in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey. Beardsley v. Crane, 52 Minn. 537, 54 N.W. 740. Original monuments of survey established during a government survey, when properly identified, control courses and distances (...