Williams v. Tschantz

55 N.W. 202, 88 Iowa 126

• Court: Supreme Court of Iowa
• Decided: May 16, 1893
• Status: Published

Opinions

Rothrock, J.

1. Boundaries: estabi1sh°|oyveyTo^con-' ciusive. I. The proceeding is under chapter 8 of the Acts of the Fifteenth General Assembly, and no complaint is made as to the application x a a ^or th0 appointment of the commissioner. H appears from the answer of the appeliant that he concurred with the plaintiff in the request that a commissioner should be appointed, and by his exceptions to the report of the commissioner it was claimed that the line was incorrectly established by the commissioner, and it was prayed that the report be disapproved, and that the “court hear testimony that the true line dividing said sections may be fixed, and defendant freed from further annoyance and loss.” In pursuance of this demand, the court did hear the testimony of a large number of witnesses introduced by the respective parties, and made an order establishing the boundary line in accord with the report of the commissioner.

The first exception taken to the proceeding by the defendant was an exception to a reply to the exceptions to the report filed by the defendant. This reply was filed at the close of the introduction of the defendant’s evidence in chief. The reply was to the effect that the true line was the same as that reported by the commissioner, because the same was surveyed and established by’the county surveyor at the instance of the appellant and other parties in interest, and that said survey had been maintained and acquiesced in by the defendant and the other parties in interest for more than ten years by setting fences and making other improvements on the lines of that survey. That survey was made more than ten years before the commencement of this proceeding.

The ground of the objection to this reply, and. to the evidence introduced to sustain its averments, is that it introduced a new element in the case, and that no such issue was involved in the proceeding, and that the only purpose of this proceeding is to ascertain where the original government lines and corners were located. In other words, it is claimed that where, in a proceeding like this, it' appears from the evidence that the original government corners and lines have been legally changed by adverse possession, or by the acts and acquiescence of adjoining owners, the court must limit its inquiry to the proper location of the government lines and corners. It is apparent that such an inquiry would determine no right. The special proceedings would be a mere farce. It would be the finding of a fact which would in no manner determine the rights of the parties. It was no error to permit the reply to the exceptions to be filed. Indeed, no reply was necessary. The defendant requested the court to hear testimony and fix the true line. It was a request, not to hear a moot case, which would determine no right, but to take evidence, and determine the rights of the parties; and it was competent for the court to make a finding independent of that made by the commissioner, and especially is this so where the evidence is received at the request of the parties, as was done in this case.

II. The court filed its decision in writing, which was as follows:

2. -: -: record on appeal. “The evidence seems to me to show that the corner as established by Mr. George C. Van Allen, as county surveyor, in 1864, is the original corner described in the field notes of the United States government survey. But it is also shown, particularly by the additional evidence offered on the second hearing, that the adjoining proprietors, including Mr. Tschantz, acquiesced in the subsequent survey which was made by Mr. Mann when he was county surveyor, and that they bought and sold, and set their fences and other improvements, on the lines of that survey. To permit any of them to insist upon the Van Allen survey now seems to my mind contrary to the intention of the statute as interpreted by the supreme court in Davis v. Curtis, 68 Iowa, 66.”

A motion was filed in this court to strike the decision or opinion from the abstract. The motion will be overruled. It is always desirable upon an examination of an appeal that this court should be advised of the reasoning upon which the trial court proceeded in determining a ease.

3. -: -: appeal: trial de novo. III. This appeal is not triable anew in this court, and the evidence fully sustains the finding that the defendant was precluded from questioning what was known ' as the “Mann survey,” both by his acquiescence therein and. by reason of the lapse of time.

4 _._. evidence. IV. And in our opinion the court correctly construed the case of Davis v. Curtis, 68 Iowa, 66. It is. there held that where it appears that when corners are found which have been recognized and acquiesced in by the adjoining proprietors-for ten years, corners should not be established elsewhere. In the ease at bar that fact was found by the court upon sufficient evidence, and the appellant could not rightfully object to the evidence, because, whether the hearing is before the commissioner or the court, evidence of “corners that have been recognized as such by the adjoining proprietors for over ten years” is by the statute made competent evidence. Section 4509, McClain’s Code.

The judgment and order of the district court are AEEIKMED.