Washington Rock Co. v. Young

80 P. 382, 29 Utah 108, 1905 Utah LEXIS 6

• Court: Utah Supreme Court
• Decided: April 8, 1905
• Docket: No. 1565
• Status: Published

Opinions

A statement of tbe case as above having been made,

BARTCH, C. J.,

delivered tbe opinion of tbe court as follows :

Tbe decisive question in tbis case is whether at tbe close of tbe evidence tbe court erred in refusing to instruct tbe jury to return a verdict in favor of tbe appellant. We understand tbe contention of tbe appellant to be that there is no conflict in tbe evidence as to tbe material facts which must control in tbis controversy, that tbe law applicable to those facts gives him an undoubted right to tbe thing in dispute, and that therefore tbe question involved was one of law for tbe court. A careful examination of the evidence shows tbis contention to be well founded. More than thirty years ago, as appears by the proof, the patentee made application to the land office to have the land in dispute surveyed, and thereupon Mr. Dickert, as deputy United States mineral surveyor, was instructed by the surveyor general to make the survey. Pursuant to such instructions, Mr. Dickert surveyed all the lines and set all the corner monuments necessary to segregate the land referred to by the application from the public domain. That is admittedly the original survey, in so far as the land in controversy is concerned. After doing some preliminary surveying, he found a rock monument at point A, a quarter-section comer previously set by Mr. Burr. Prom this point he ran east on a true line, giving each mile eighty chains, and established the southeast corner of section 11 at B,'the quarter-section corner at C, and the southeast corner of section 12 at E, which section embraces the land in question. He also established the comers at P, X, and T, and all the intermediate corners, including K, H, I, and G, but he did not establish the corner at Z. All these corners are represented on the diagram appearing in the statement of facts. At this time the township line on the east side of section 12 had not yet been surveyed. On this survey the entry of the appellant’s land was made and the patent issued, and it included the land upon which the stone quarry is located. About two years later Mr. Perron made a survey of the eastboundary line of section 12. He commenced his survey from a point about four miles below E, and ran a random line north to E; but whether or not he found the monument set at E by Mr. Dickert does not satisfactorily appear from the evidence, which simply shows that he ran a liné between certain “townships to the corner of sections 7, 12, 13, and 18,” without direct reference to a monument. Prom point E, to which he so ran, he proceeded north to W, and thence north, and established the northeast corner of section 12 at Z. Some time later Mr. Pancake made his survey of the north, west, and south boundaries of section 12. In order to re-establish the lost corner at B, the southwest corner of section 12, he also began the survey at a point four miles south on the south boundary of the township, and then from B proceeded to re-establish the other lost corners and lines necessary to locate the appellant’s land. In establishing the lost corners and lines, as will be observed, neither Mr. Herron nor Mr. Pancake followed the survey of Mr. Dickert. They evidently paid no attention to the corner at point A, although the monument at that corner remains still at the place where it was' set by the original survey. Instead of retracing the original survey from an original known corner with the aid of the field notes, they chose to commence at a point in an entirely different direction from E, four miles therefrom, and then from such point, disregarding almost wholly the original survey, attempted to reestablish the lost corners and lines. The lost monuments thus re-established, it appears, controlled in the survey of Mr, Anderson, the respondent’s surveyor, whereby the stone quarry in dispute was transferred from the appellant’s land to that of the respondent by locating the boundary line between the two tracts on the west side of the quarry. The corner at Z, though not established until several years, after the original survey 'was made, he assumed to be correct, -instead of the one at A, and thus made the survey, with the result indicated. He says, “Either the point A or Z is wrong,” and assumes A to be wrong, although the corner at.A was established by the first survey, and yet remains in the same place. By doing so, he not only disregarded point A, the solemn witness of the original survey, but also the field notes, which show the courses and distances of that survey from that corner, in violation of the principle that, where the monuments and lines of an original survey are lost, the field notes of such survey, and the courses and distances shown by them, may be resorted to, as the best evidence remaining, in reestablishing such monuments and lines. The fact, if it be a fact, that, if the Dickert survey be retraced by aid of the courses and distances given in the field notes, it places the corner at E, some distance east of the township line, into another township, can make no difference, under the circumstances disclosed by the proof -respecting lost comers and lines. Such fact, if it be a fact, cannot injuriously affect the rights of the appellant acquired by entry based upon a survey made before the township line was located. If by the original survey the comer at E was set east of where the township line was afterwards located, subsequent surveyors had no right to place it anywhere else. The law is well settled that an original survey of lands, upon the faith of which property rights have been based and acquired, controls over surveys subsequently made which injuriously affects such rights.

The witness Anderson admits the binding effect of an original Survey, and yet in practice he disregarded the very evidence which would admittedly have enabled him to re-establish the lost lines and corners without interference with property rights acquired on the faith of an original authorized government survey, for he admitted in his testimony that if he had commenced his survey at point A, and followed the field notes of Mr. Dickert, the quarry would be in the appellant’s land. That this is true is clear from the survey of Mr. Hardy, who started from point A, and recognized the field notes of the Dickert survey. His survey appears to be a compliance with the rules of law governing such a case. Where the monuments of corners, which, if standing, would fix the boundaries of a tract of land, are lost, as in this instance, but the corner monument, from which the initial survey was made, remains intact, such monument, in the absence of other controlling evidence of the original survey which will protect the property rights acquired on the faith of that survey, and which will be more likely to restore the original lines and monuments, should be resorted to and adopted as the beginning point of subsequent surveys of the Same tract of land. From that point the original survey should be retraced, and the monuments, re-established, with the aid of the courses and distances contained in the field notes of the first survey.

“Original corners, as established by the government surveyors, if they can be found, or the places where they were originally established, if they can be definitely determined? are conclusive, without regard to whether they were located correctly or not.” (5 Cyc., 873.)

In reference to the powers and duties of commissioners and processioners under appointment to establish lost boundaries, it is said:

“The powers of commissioners and processioners extend only to locating and establishing lost or doubtful boundaries, and they can in no event disturb title or rights of possession or establish new lines. In doing this they must follow the mode prescribed by the order or decree of appointment, and from a known and established corner or monument should run out the lines by course and distance according to their original location. They are at liberty, however, to survey whatever lines may be necessary in order to find and establish the true location of the line in dispute.” (5 Cyc., 946; Martz v. Williams, 67 Ill. 306.)

This applies with equal force to subsequent surveyors appointed to re-establish lost lines and comers. Such .surveyors may ■ also, in all cases of this character, consider other extrinsic material evidence, as well as the field notes, for the purpose of determining the exact location of the lost lines and corners of the original survey; and, wherever corner monuments of that survey can be found in place, they must control-over the courses and distances indicated by the field notes, and over any other calls in such notes. This is a binding rale. But “before the rule that monuments control courses and distances can apply, there must be actual, fixed monuments, and the places where they were at the time the deed was made must be determined.” (4 Am. and Eng. Enc. Law, 769.) In Hess v. Meyer, 73 Mich. 259, 41 N. W. 422, it was said:

“If the stakes or monuments placed by the government, in making the survey, to indicate the section comers and quarter posts, can be found, or tbe places where they originally were placed can be identified, they are to control in all cases. When they cannot be found, or if lost or obliterated, they must be restored upon tbe best evidence obtainable wbicb tends to prove where they originally were. For this purpose surveys are made, and tbe lines retraced as near as possible.”

In such cases junior or subsequent surveys are not made to dispute tbe correctness of or to control tbe original survey, but to furnish legitimate proof of where tbe lost lines or monuments were, so as to aid tbe jury in determining tbe exact location of tbe original survey. It seems dear, therefore, that in making such junior surveys tbe original survey should be retraced, when possible. In this instance there appears to be disclosed by tbe record no good reason why tbe subsequent surveyors disregarded point A and the field notes, went over four miles from point E for a starting point,, and made practically a new survey, instead of retracing the old one. An original survey, upon which property rights have been acquired, cannot thus be changed or diminished or obliterated, with so little regard for existing evidence. In Clement v. Packer, 125 U. S. 309, 8 Sup. Ct. 907, 31 L. Ed. 721, it was said:

“It is unquestionably true that a junior survey cannot control or enlarge the dimensions of a senior survey. We understand this to mean that, when the location of a survey is or can be ascertained or determined by its own marks upon the ground — its own calls and courses and distances — it cannot be changed or controlled or enlarged or diminished by the marks or lines of an adjoining junior survey; but when, from the dissappearance of these original landmarks, caused by time and other agencies, from the senior survey, the location of a particular line or the identity of a corner is left in uncertainty or becomes the subject of controversy, then the original and well-establisbed marks found upon a later survey made by tbe same surveyor about tbe same time, and adjoining tbe one in dispute, are regarded as legitimate evidence, not to contest or control, but to elucidate, throw light upon, and thus aid tbe jury in discovering tbe exact location of tbe older survey.”

(1 Dembitz, Land Titles, sec. 4; 5 Cyc., 874, 875; A Am. and Eng. Enc. Law, 787; Goodman v. Myrick, 5 Or. 65; Payne v. English, 79 Cal. 540, 21 Pac. 952; Irvin v. Rotramel, 68 Ill. 11; Clement v. Northumberland Coal Co., 87 Pa. 291; Hubbard v. Dusy, 80 Cal. 281, 22 Pac. 214; Nesselroad v. Parrish [Iowa], 13 N. W. 746; Billingsley v. Bates, 30 Ala. 376, 68 Am. Dec. 126.)

Tbe fact that tbe date of tbe appellant’s patent is not in evidence does not militate against tbe position that it was based upon, and issued with reference to, tbe original survey. Tbe entry was made in tbe land office upon tbe faith of that survey, and when tbe patent was issued it related back to the date of tbe entry. A patent granted by tbe United States is always preceded by a survey, and is understood to refer to the lines actually run on tbe ground. (1 Dembits, Land Titles, sec. 4; Flint & P. M. Ry. Co. v. Gordon, 41 Mich. 420, 2 N. W. 648; Lessee of French v. Spencer, 21 How. (U. S.) 228, 15 L. Ed. 97; Shepley v. Cowan, 91 U. S. 330, 23 L. Ed. 424; Stark v. Starr, 6 Wall, 402, 18 L. Ed. 925.)

Having thus concluded that tbe court, under tbe facts in evidence, ought to have instructed tbe jury to return a verdict in favor of tbe appellant, it is unnecessary to decide any other question presented.

Tbe case must be reversed, with costs, and remanded for further proceedings in accordance herewith. It is so ordered.

McOARTY, J., concurs.