BARTCH
C. J., delivered the opinion of the court. McCARTY, J
STRAUP, J., concurring.
OPINION
BARTCH,
C. J.
STATEMENT OF FACTS.
This is
a controversy over a lost boundary or survey. The plaintiff
is the owner of the northeast quarter of the southeast
quarter, and the appellant of the northwest quarter of the
southeast quarter, of section 12, township 1 south, of range
1 east, Salt Lake meridian. Along the boundary line between
the two tracts is located a stone quarry, which, if the line
is as claimed by the plaintiff, belongs to the rock company;
if it is as claimed by the appellant, it belongs to him. The
following diagram shows the location of the premises, as
referred to by the evidence:
Distance
from A to where original surveyor claims he set corner
indicated by E is 7,920 feet. This locates quarry west of
line G-H. Distance from A to where subsequent surveyors replaced corner at E is 7,749 feet. This locates
quarry east of line G-H.
Mr.
Dickert, who made the original survey of the line in
controversy, testified: "In 1881 and 1882 I made a
survey of the land in question for the government, as a
deputy United States surveyor. The government paid me for my
services. . . . Mr. Young made an application in the surveyor
general's office to have this land surveyed, covering the
quarries. . . . I established the southwest corner of section
11, marked R on defendant's Exhibit A. From this I ran
east, and found the rock in place at A, that must have been
set by Burr. My survey came out exactly with him. . . . I ran
east from A on a true line, giving each mile eighty chains. I
established a mile corner at B; then from there I set every
twenty chains a cedar stake about two or three inches in a
pile of rocks, so as to find out where the twenty-chain post
comes. We do not establish them for the government, but I
established it for Mr. Young, to find out where the quarter
sections were. At D I established the quarter-section corner;
put a big monument
there. Went twenty chains farther to T, and I set a stake.
Then I established the southeast corner of section 12 at E.
Each mile had eighty chains. No other survey had been made of
the point E, or of any point I surveyed, except A, which was
just northwest of the pesthouse. . . . From E I ran north,
and established the east boundary of 12 at the corner marked
F. When I came to the half-mile post, I found the country was
so rough it was no use to run farther, for the purpose we run
the line was to cover the quarry. The line was sufficient. I
stopped at F, and made a large pile of rock, and in the
neighborhood there was some large rock. I marked witness
corners. I forget--it is twenty-one or two years--but my
notes prove that. If they wanted to retrace the line, they
could have done it by running to that corner. I established X
on the north line of section 12, and from there run a half
mile east between sections 12 and 1, and established Y. . . .
Then, with reference to establishing the lines of this forty
acres of Judge Young's, I run a line north from a point twenty chains east of the quarter-section
corner. That is the line north from F. I also run north from
D to K twenty chains, and established the corner there. I
also set a corner at H, then we run up north another twenty
chains, and I set there a big scrub cedar or something--I
don't recollect--and I gave Mr. Young a complete map of
the survey and the notes. This last point was G. Then I went
west twenty chains and established I. I established,
therefore, K, H, G, I, and put posts at each corner, to cover
the land to Judge Young. I have visited this land again
lately. I was there in November or December of last year with
Mr. Hardy, the surveyor. He is in court. I went along what is
marked the 'wagon road' on the map. We stopped about
15 chains from the quarry. Did not walk up to the quarry. I
set the posts G and H. I remember when I made the survey that
there was a quarry on the west side of the line. I did not
see anything on the east side. . . . It [the line] must have
been twenty or thirty feet east of the quarry, and left the
quarry in Judge Young's land. . . . I established point A
exactly where the Burr monument was. Did not change it at
all."
The
official field notes of Mr. Dickert's survey, in the
custody of the United States surveyor general, which were
introduced in evidence, show the manner of making that survey
as follows: "Survey commenced at the remains of an old
mutual corner of sections 10, 11, 14 and 15, thence east on
the line between sections 11 and 14 to the quarter corner, at
which place a sandstone monument was set, the southeast
corner of the pesthouse bearing north forty-nine and one-half
degrees west five chains from the monument; thence east to
the southeast corner of section 11, eighty chains from
beginning, at which place a monument was set; thence farther
east forty chains on the true line between section 12 and 13
to the quarter-section corner, at which place a monument was
set; thence farther east forty chains to the southeast corner
of section 12 on east boundary of township, at which place a
red sandstone monument was set, 20x10x9 inches. From the
southwest corner of section 12, Mr. Dickert went north between sections 11 and 12 forty chains and set a
red sandstone monument for a quarter-section corner; thence
farther north forty chains to the northwest corner of section
12, at which place a monument was erected. The survey then
proceeded west along the north side of section 11 and then
from the northwest corner of section 12 proceeds east between
sections 1 and 12 forty chains to quarter corner, at which
place a monument was erected. Mr. Dickert also run north
forty chains from the southeast corner of section 12 to
quarter corner, at which place a sandstone monument was
set."
The
next survey was made by Mr. Ferron in October, 1884; and,
referring to the field notes in the surveyor general's
office, the witness Atkinson testified: 'These notes show
that from the corner of townships 1 and 2 south, range 1, and
2 east, Mr. Ferron run north on a random line between said
townships to the southeast corner of section 12; finding the
distance to be four miles and nineteen links, and the falling
to be sixty-five links north of corner to sections 7, 12, 13,
and 18. This is a mistake. It should have been east or west.
I adjusted my chains and instrument to the measurements
found, and ran south between sections 13 and 18. From the
corner to sections 7, 12, 13, and 18, which is a sandstone
20x10x9 inches, properly marked, Mr. Ferron run north between
sections 7 and 12 forty chains, and found the old quarter
corner, and went still farther north forty chains to the
northeast corner of section 12, and there set a sandstone
monument." The same witness, reading from the official
field notes of Mr. Pancake's survey, which was made in
December, 1884, said: "Mr. Pancake did not find the
southwest corner of section 12. He re-established it. He
reached that from the south boundary of the township. From
that corner he run east on a random line forty chains, and
found no trace of the old corner. He then went farther east
forty chains, to the southeast corner of section 12, where he
found the old corner; and from this corner he returned back
forty chains, and there reset the quarter corner on the south
of section 12; thence back to the southwest corner of section
12, where he reset the corner which was not
found. From the southwest corner of section 12 he ran north
forty chains to the quarter corner. He found no corner
standing, and reset it. Thence farther north forty chains to
the northwest corner of section 12, where he found no trace
of the old corner, and there he reset a stone monument. From
this point he ran east forty chains, and found no trace of
the old corner,
and there he reset a quarter corner. In order to establish
the southeast corner of section 11, Mr. Pancake run from the
south boundary of the township four miles south. He did not
find the corner there, but re-established it. . . . The north
and west and south boundary of section 12 was surveyed by
Pancake. The east boundary of section 12 was surveyed by
Ferron." On cross-examination the witness testified:
"The first survey of section 12 was made by Mr. Dickert.
This survey came from the west of point A to B, then north to
X, thence from B to C, then from D to E, and established the
quarter corners and the section corners. He didn't
establish D. As a government surveyor, he wouldn't
establish that. All we establish are the section and
quarter-section corners. E, W, and Y were established by Mr.
Dickert in 1881. Burr's survey was in 1856. A was the
only corner located by Burr. In December, 1884, Mr. Ferron
made his survey, and began four miles below E, and came north
to E. He found E standing. I infer he found that corner all
right. It practically says so. He starts from that point,
four miles south. 'I run north on a random line between
said townships to the corner of sections 7, 12, 13, and
18.'"
The
witness Anderson, who was employed by the plaintiff company
and made a survey of its land and the line in dispute, among
other things testified: "Mr. Dickert's survey,
whether correct or incorrect, would be binding if you could
find the corners he put there at W and E and C. We are trying
to replace his corners, and, if I started at...
