Findley v. McCormick

50 Ind. 19

• Court: Indiana Supreme Court
• Decided: May 15, 1875
• Status: Published

Opinion

Downey, J.

This was an appeal, by Hugh A. Findley, from a survey, made by the county surveyor of Jackson county, to the circuit court. The appellant in that court was regarded and designated as the plaintiff. The statute, on the subject of such appeals, provides as follows:

“ The survey of such surveyor shall be prima fade evidence in favor of the corners so established, and the lines so run, but an appeal may be taken to the circuit court within three years, and such court may reverse such survey; and upon such appeal being prayed for by any person, such surveyor shall forthwith transmit the paper» in his hands touching the same, and copies of the field notes in the case complained of, without requiring an appeal bond, and such court, in the trial of such appeal, may receive evidence of other surveys of the same premises, made by the same or other persons, either before or since the one complained of, and if such court shall decide against such surveyor, it shall enter an order for a re-survey, and such new survey may be made by any other competent person whom the court may designate, from whose decision an appeal may be in like manner had.” 1 G. & H. 596, sec. 8.

The survey was of section 7, in township 5, north of range 5 east, and the disputed line was a line running east and west, dividing the west half of the section into quarter sections. A plat of the section and the field notes, certified by the surveyor, were filed as the papers in the cause on appeal. The cause, in the circuit court, was tried by the court without a jury, and there was a finding for the defendants, the appellees.

A. motion for a new trial was made by the appellant, for the following reasons:

1. The finding of the court is contrary to the evidence.

2. It is contrary to law.

8. It is contrary to the law and the evidence.

4. The judgment is contrary to law and the evidence.

5. Admitting in evidence the record of the field notes of the lands of Jackson county, Indiana, over the objection of plaintiff, etc.

The motion was overruled, and final judgment was rendered for the appellees.

The error assigned in this court is the overruling of the motion for a new trial.

As the statute declares the survey prima facie correct, we suppose the party appealing has the onus of showing that it is incorrect.

It is impossible for us to say that the circuit court committed an error in overruling the motion for a new trial. The evidence introduced by the appellant in the circuit court was, we think, consistent with the survey .made from which he appealed. This disposes of the first four reasons for a new trial.

There is no ground whatever, in the record, for the fifth reason for a new trial, as it does not appear that any such field notes were put in evidence by the defendants.

The judgment is affirmed, with costs.