Cornia v. Putnam

489 P.2d 1001, 26 Utah 2d 354, 1971 Utah LEXIS 727
CourtUtah Supreme Court
DecidedOctober 15, 1971
Docket12383
StatusPublished
Cited by3 cases

This text of 489 P.2d 1001 (Cornia v. Putnam) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cornia v. Putnam, 489 P.2d 1001, 26 Utah 2d 354, 1971 Utah LEXIS 727 (Utah 1971).

Opinions

CALLISTER, Chief Justice:

Plaintiff, alleging ownership of the southwest quarter of the southwest quarter of Section 22, T. 9 North, R. 6 East, Salt Lake Base and Meridian, initiated this action to compel defendant to remove a fence which he had erected allegedly upon plaintiff’s land. Defendant responded by answer and counterclaim, asserting his ownership in the southeast quarter of the southwest quarter of Section 22 and contending that the controversy involved the location of the boundary line between the two parcels. Defendant prayed that the true and correct boundary line be decreed by the court.

Upon trial, this matter was heard by the Honorable Lewis Jones; the case was under advisement at the time of his unexpected demise. Counsel stipulated that the matter be decided upon the record by the Honorable Venoy Christoffersen, who ren[356]*356dered judgment for the plaintiff. Defendant appeals.

The trial court found that each party had hired competent surveyors to run surveys to locate the southwest corner of Section 22; the sandstone monument, placed by the government surveyor at this point was missing. The defendant’s surveyors, in re-establishing the location of the southwest corner of Section 22, relied upon the testimony of witnesses and the field notes of the original survey, regarding distances and courses to natural objects, such as, streams. Plaintiff’s surveyors located the boundary line by proceeding by courses and distances from original government monuments still in place; one surveyor commenced from the southwest corner of Section 33; the other initiated his course from the southwest corner of Section 16. The trial court accepted plaintiff’s survey as accurate, on the ground that it was based upon corners actually fixed upon the ground by a government surveyor. The court found that the fence constructed by defendant constituted a continuous trespass. The court held that the north-south boundary line between the two sixteenth sections in the southwest quarter of Section 22 was along the west boundary of Cornia Lane, a lane which runs in a north-south direction through the lowest third of the quarter section. (Cornia Lane terminates at its 'intersection with the Monte Cristo Road, which in the disputed area runs on an east-west course. Consequently, the boundary line as decreed by the court for the northern two thirds of the southwest quarter would be an approximate projection of the west boundary of Cornia Lane, north of the Monte Cristo Road.)

On appeal, defendant urges that the trial court erred by its admission of the testimony of witness Harry N. Carlton concerning the survey he conducted of the area. Mr. Carlton, a resident of Wyoming, is a licensed engineer and land surveyor in that State. Defendant contends that Mr. Carlton was not qualified to testify as an expert witness because he was not licensed to act as a surveyor in the State of Utah in accordance with Chapter 22, Title 58, U.C.A. 1953, which regulates the practice of engineering or land surveying.

The qualification of an expert witness is to be determined by the trial judge, and if he determines that a witness by reason of training and experience can assist the jury by giving an opinion on a matter properly before the court, we on appeal should not hold that testimony should be stricken unless such palpable ignorance of the subject matter is manifested by the witness as to indicate an abuse of discretion on the part of the trial judge in allowing the witness to express an opinion in the first place or in [357]*357refusing to grant a motion to strike after it is given.1

Defendant proffers no facts concerning the witness, either as to his lack of training or experience or as to his palpable ignorance of the subject matter, to indicate that the trial judge abused his discretion in permitting Mr. Carlton, as a qualified expert witness, to testify. His testimony was properly allowed as competent evidence.2

Defendant contends that the surveys conducted by Mr. Carlton and Mr. Moser, plaintiff’s surveyors, were not conducted in conformity with the requirements set forth by law; and, therefore, the trial court erred in its determination of the location of the boundary line in accordance with these surveys.

Mr. Carlton located the government monument at the southwest corner of Section 16, he established a line to the south and located the monuments marking the quarter corners between Sections 20-21 and Sections 29-28, from whence he determined that his setting of a temporary corner at the northeast corner of Section 28 was correct. He proceeded east for a distance of 80 chains (one mile), where he found no cornerstone marking the southwest corner of Section 22. He continued on the same line for an additional 1320 feet, at which point he determined the boundary line between the sixteenth sections of the southwest quarter of Section 22 was located. Mr. Carlton used the township map to check hearings and distances; he did not use the field notes to check the location of the corner.

Mr. Moser commenced his survey at the government monument located at the southwest corner of Section 33; he went northerly and located the southwest and west quarter corners of Section 28; he determined a position which he accepted as the northwest corner of Section 28. He proceeded east along the north line of Section 28; he did not find government monuments at the north quarter or northeast corner of Section 28, which is also the southwest corner of Section 22. He continued east 1320 feet to locate the line between the two sixteenth sections.

Mr. Moser admitted that he did not arrive at the southwest corner of Section 22 by following the field notes of the original surveyor, as he established it. In 1875, the original surveyor went north between Sections 27 and 28 from the corner of 27, 28, 33, 34 for a distance of 80 chains and set the government monument for the corner to Sections 21, 22, 27, 28. He then pro[358]*358ceeded east on a random line until he intersected the north-south line at 80.50 chains at the previously established corner of Sections 22, 23, 26, 27. He was 50 links south of this corner; he corrected the line then ran back on a true line between Sections 22 and 27 and set the quarter corner at 40.25 chains, and proceeded back to the corner of Sections 21, 22, 27, 28, at a distance of 80.50 chains from the southeast corner of Section 22. When the original surveyor discovered the southwest corner of Section 22 was 33 feet off, he did not re-establish it; however, Mr. Moser in running his survey did correct this error.

Mr. Moser in his survey did not attempt to tie the point he accepted as the southwest corner of Section 22 into the natural objects cited in the field notes to the north, south or east of the corner. Mr. Moser did not attempt to locate the south quarter corner or southeast corner of Section 22 and tie them to the location of the boundary line or the southwest corner.

Plaintiff urges that if you have one or more in place original monuments located anywhere in the township and you have the angles and distances from the original field notes, the exact location of a disputed line can be determined, even though it is necessary to cross over lost or obliterated corners. Defendant contends that such procedure was improper and asserts that initially a determination must be made as to whether the southwest corner of Section 22 was lost or obliterated.

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Related

Colman v. Butkovich
556 P.2d 503 (Utah Supreme Court, 1976)
Cornia v. Putnam
489 P.2d 1001 (Utah Supreme Court, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
489 P.2d 1001, 26 Utah 2d 354, 1971 Utah LEXIS 727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornia-v-putnam-utah-1971.