Wing v. Wallace

• Decision Date: 28 April 1926
• Citation: 42 Idaho 430,246 P. 8
• Parties: FRANK L. WING, Respondent, v. JOHN J. WALLACE and IDA M. WALLACE, Appellants
• Court: Idaho Supreme Court

246 P. 8

42 Idaho 430

FRANK L. WING, Respondent, v. JOHN J. WALLACE and IDA M. WALLACE, Appellants

Supreme Court of Idaho

April 28, 1926

BOUNDARIES-CONFLICTING SURVEYS-PURPOSE OF RESURVEY-RELATION OF PATENT TO DATE OF ENTRY-DETERMINATION OF SURVEY TO BE USED IN ASCERTAINING BOUNDARIES-QUIETING TITLE.

1. Purpose of resurvey subsequent to taking title by purchasers or settlers is to ascertain lines of original survey regardless of correctness of such survey, and corrective survey will not affect rights previously acquired.

2. Patent when issued relates back to date of entry under Act Cong. June 21, 1866, sec. 2, as amended by Act Cong. June 6 1912 (U. S. Comp. Stats., sec. 4532), and date of entry controls in determining survey to be used in ascertaining boundaries.

3. Where record in action to recover possession of real property was silent as to date of entry of defendant, as to which of two surveys should be used in determining boundaries, court properly refused to quiet title in defendants since recovery must be had on strength of own title.

4. Where plaintiff in action to recover possession of property did not show when entry was made on land, on which his patent issued, and it would have been possible, according to date of patent, for him to have made entry under either one of two different surveys, quieting title in plaintiff was error since last accepted survey before patent under which title is given controls.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to recover possession of real property. Judgment for respondent. Affirmed in part and reversed in part.

Reversed and remanded, with instructions. Each party to pay their own costs.

Rice & Bicknell, for Appellants.

Before patent, the government may make as many surveys of public lands as the Land Department desires, and the last accepted survey will control. The patentees take title under said last survey. (Schwartz v. Dibblee, 51 Cal.App. 451, 197 P. 125; Spawr v. Johnson, 49 Kan. 788, 31 P. 664.)

On a resurvey after patent, the question of the correctness of the original survey cannot enter into the matter at all, and is a matter that does not concern the surveyor and is not a question to be ascertained by him. (Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066; Richardson v. Bohney, 19 Idaho 369, 114 P. 42.)

Upon a resurvey the question is not where an entirely accurate survey would locate the lines but where did the original survey locate such lines. (Dichl v. Zanger, 39 Mich. 601; Stuart v. Carleton, 31 Mich. 270.)

Stone & Jackson, for Respondent.

Wherever the corners were placed by the original government survey that must govern as the boundary line, no matter whether accurate or not, and cannot be altered or controlled by subsequent surveys. (Washington Rock Co. v. Young, 29 Utah 108, 110 Am. St. 666, 80 P. 382; Ferry v. Fowler, 37 Utah 34, 106 P. 506; Hess v. Meyer, 73 Mich. 259, 41 N.W. 422.)

Where an entry of public land is made in the land office on the faith of an original government survey, the patent when issued relates back for all purposes to the date of the entry and is based on such original survey. (Taylor v. Brown, 5 Cranch, 234, 3 U. S. (L. ed.) 88; Stark v. Starrs, 6 Wall. 402, 18 U. S. (L. ed.) 925; Northern P. R. Co. v. Townsend, 84 Minn. 152, 87 Am. St. 342, 86 N.W. 1007; Faull v. Cooke, 19 Ore. 445, 26 P. 662; Washington Rock Co. v. Young, 29 Utah 108, 110 Am. St. 666, 80 P. 382; City of Denver v. Mullen, 7 Colo. 345, 3 P. 693.)

GIVENS, J. Wm. E. Lee and Budge, JJ., concur.

OPINION

GIVENS, J.

Frank L. Wing, respondent, and John J. Wallace and Ida M. Wallace, appellants, are the owners of adjoining pieces of land located in section 17. Respondent brought this action to obtain possession of a strip of land lying between his land and that of appellants which he claims to be a part of his land and of which appellants are in possession and claim as a part of their land and ask that title be quieted in them.

The first survey of the section in which the lands in controversy are situated was made by one Thompson for the United States government in 1877. In 1912 a resurvey of this section was made by Walter Ward at the direction of the United States, this being the last survey made before patents were issued to the lands involved in this action. The patent to appellants' land was issued July 1, 1914, and to the land of respondent June 22, 1918. By the survey of Ward in 1912 the strip of land in dispute was located within appellants' land. A third survey or second resurvey, was made in 1919 for the United States by Gordon C. Smith, and respondent claims that by the field-notes of this survey the strip of land in question lies within his land. This survey did not coincide altogether with that of Ward but did with that of Thompson. The action was tried to the court without a jury and judgment was entered in favor of respondent, from which judgment this appeal is taken.

Appellants contend that the government may make as many surveys of public lands as the Land Department desires and the last accepted survey before patent is the one under which the patentees take title and a resurvey after patent will not affect the patentees' rights. Respondent, on the other hand, contends that if the boundary lines of the first survey can be retraced they are controlling, and urges that the surveys made by Ward in 1912 and Gordon C. Smith in 1919 were made for the purpose of retracing and ascertaining the original boundary lines as fixed by the first survey in 1877. This court has held that the purpose of a resurvey subsequent to taking title by purchasers or settlers is to ascertain the lines of the original survey and the original boundaries and monuments as established and laid out by the surveyor under which the parties took title (Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066; Richardson v. Bohney, 19 Idaho 369, 114 P. 42), regardless of the correctness of such survey, and a corrective survey will not affect rights previously acquired. (United States v. State Investment Co., 264 U.S. 206, 44 S.Ct. 289, 68 L.Ed. 639; State of New Mexico v. State of Colorado, 267 U.S. 30, 45 S.Ct. 202, 69 L.Ed. 499; Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566; Schwartz v. Dibblee, 51 Cal.App. 451, 197 P. 125; Spawr v. Johnson, 49 Kan. 788, 31 P. 664.)

The question then is: Under which survey before patent in 1914 did the patentee take--that of Thompson in 1877 or that of Ward in 1912? The patent issued to Charles B. Crim under which appellants deraign title recites that the patentee is entitled to a patent for: "the farm Unit 'D' according to the Farm Unit Plat or the Lot three of section seventeen in Township three north of Range four west of the Boise Meridian, Idaho, containing forty-one...