THOMSEN v. KEIL
Thomsen v. Keil
Ducker, C. J.: I concur.
THOMSEN v. KEIL
THOMSEN v. KEIL
No. 2613
June 4, 1924.
226 Pac. 309.
Warren & Dignan, for Appellant:
Thos. E. Poivell, for Respondent:
OPINION
By the Court,
Coleman, J.:
This suit is in the nature of an action to quiet title. It is in reality an action to establish a boundary. Plaintiff sought to have his title quieted to the northwest quarter of the northeast quarter of section 33, township 36 north, range 35 east, Mount Diablo base and meridian, Humboldt County, Nevada. The defendant filed an answer disclaiming any title or interest in said property, but for a cross-complaint sought to have his title quieted to the east half of the northwest quarter of section 33, township 36 north, range 35 east, Mount Diablo base and meridian, Humboldt County, Nevada. From a judgment in favor of the defendant, and an order denying a motion for a new trial, the plaintiff has appealed.
A determination of the issues between the parties depends entirely upon the correct location of the north quarter-section corner of section 33, since the plaintiff is admitted to be the owner of the land to the east of the true line between the tracts claimed by the parties, and the defendant of the tract to the west of this line.
The township in which the section mentioned is located was surveyed many years ago by the United States Government. In an effort to sustain his contention as to the correct position of the quarter corner mentioned, the respective parties employed a surveyor to locate the same. In doing so they undertook to locate the north line of section 33. While both found the original monument of the southwest corner of the section, they disagreed as to the original location of the northwest and the northeast corners thereof.
Beginning at the northwest corner of the section, the original field notes, so far as material, read:
"East, on a random line between sections 28 and 33 variation 17° 45 east. Over mountainous ground. 11.00 cross ravine course S. 21.00 cross ravine course S. 39.00 cross road course S. E. 40.00 set temporary 14 sec. cor. 55.00 cross ravine course S. E. 80.33 intersect N. & S. line 15 Iks. N. of the cor. to secs. 27, 28, 33 & 34, thence I run N. 89° 54' W. on a true line bet. secs. 28 & 33 with same var. 40.16 Deposit a marked stone 12 ins. in the ground for 1/4 sec. cor. dig pits 18x18x12 ins. E. & W. of cor. 51/2 ft. dist. and raise a mound of earth 1% ft. high, 3% ft. base over it. In E. pit drove a stake 2 ft. long 2 ins. square, 12 ins. in ground marked 1/4 S. on N. -face. 80.33 the cor. to secs. 28, 29, 32 & 33, land mountainous, soil 3rd rate, sagebrush."
The plaintiff contending that the north quarter corner of section 33 is a "lost" corner his surveyor established it at a point which, if correct, would necessitate a reversal of the judgment. The surveyor of the defendant took the view that the north quarter corner is not a "lost" corner, and established it at the point which the trial court adopted as the original north quarter corner.
A "lost" corner is defined as follows:
"A lost corner is a point of a survey whose position cannot be determined, beyond reasonable doubt, either from original traces or from other reliable evidence relating to the position of the original monument, and whose restoration on the earth's surface can be accomplished only by means of a suitable surveying process with reference to interdependent existent corners." Clark on Surveying and Boundaries, sec. 376, quoting from rules of the Department of Interior.
In the same section the author says:
"A corner should not be regarded as lost until all means of fixing its original location have been exhausted. It is much more satisfactory to so locate the corner than regard it as "lost" and locate by proportionate measurement."
At section 329 the author says:
"The surveyor should not treat a corner as lost until he has exhausted all means of fixing its location aside from the determination thereof, by measurement thereof to other corners."
Counsel for appellant says that the rules of the Department of Interior relative to the establishment of corners as originally established pursuant to the government survey must control. This would certainly be true if the quarter corner in question were upon the surveyed public domain; but, since it is upon land privately owned, and for which patent has been issued, we are not prepared to admit the contention, but, since the case seems to have been tried upon the theory urged, we will in disposing of it be^ guided by the rule invoked.
The trial court no doubt kept in mind the admonitions above quoted against considering a corner as lost. Indeed, we think it would have violated the rule invoked by appellant had it concluded that the corner in question is "lost." In the light of the rule quoted we must determine if the trial court could, beyond reasonable doubt, either from original traces or from other reliable evidence relating to the original position of the corner, determine its position.
The evidence on the part of the plaintiff is to the effect that he measured the distance between the points which he contends represent the northwest and the northeast corners of the section and established the north quarter corner at a point equidistant between the two. As we have pointed out, the surveyor of the defendant disagreed as to the correct location of these corners as maintained by the surveyor of the plaintiff. Which view the trial court accepted does not appear. Nor indeed is it material, since it rejected in toto the theory of the plaintiff as to its being a lost corner. Since, as we have said, the position of the north boundary line of the section is not seriously disputed, we need not consider in detail the evidence of the surveyor of the defendant. It will be observed that the original field notes of the survey of this north boundary line of section 33, as quoted, calls for a "road course S. E." at a point 89 chains distant from the northwest corner of the section, and at 40 chains "set temporary 1,4 sec. cor." The undisputed testimony shows that there was a road crossing this section in the direction mentioned in the field notes; that this road is in a deep ravine at the point where the ravine crosses the north section line in question; that a road could not have been constructed on the west side of that ravine because of the topography of the country, and there is evidence that there never was a road on the east side of it, and that one could not have been built along its east side except at great cost; that the bottom of the ravine was a natural roadbed; that the road in' this ravine had been used for many years; that a few years ago there was a cloudburst which washed large quantities of rock and gravel into the road at the point mentioned, but the point at which the road passed up the ravine where thus covered over was located by oral evidence. Witnesses also testified that at a point about 70 feet east of this road, on the side of the hill, and in clear view of the road, a rock about 20 inches long was discovered with the figure "4" cut upon it with a line over the figure. The defendant testified that he had seen this rock at this point over a period of several years. A remarkable coincidence in this connection is the fact that the surveying crew of the plaintiff took this rock from the place it had been for several years, carried it to town, and strenuously resisted all efforts on the part of the defendant to have it produced in court.
Clark on Surveying and Boundaries, at section 373, says:
"Where a monument is obliterated, the accessories furnish the highest evidence of the location of the original monument, and therefore such accessories are of prime importance in relocating such obliterated monument. The term accessories includes all witness trees, line trees, mounds, pits, streams, bodies of water, ledges, rocks, or other natural features to which the distance from the corner or monument are known. These natural features furnish unmistakable evidence of the location of the monument, the nearer to the required point, the stronger the evidence."
In the instant case the road called for in the field notes was in a ravine — the only place, according to the evidence, it could be — and the place where it is shown to have been. This certainly must be considered as an accessory — a call from which the point of the original location of the quarter corner could be established. Particularly is this true when it is remembered that the point at which the marked stone was found and that designated in the field notes as the location of this quarter corner is only about 70 feet from this road and in clear view thereof.
No doubt, too, the court, attached considerable significance to the rock to which we have alluded. It is true that the rock was not found in a mound or in such a position as to indicate that it had been placed at the point found, but, in view of all of the testimony, particularly that as to cloudbursts in that locality, the court was justified in concluding that it had been carried a short distance from the point at which it was originally placed. The effort on the part of the plaintiff to conceal this stone is a circumstance justifying the court in looking with suspicion upon his case.
We think, in view of all of the evidence, the court was justified in establishing the quarter corner with reference to the call for the road in the field notes where it did.
The rule which should control in this situation is that stated in a unanimous opinion by the Supreme Court of the United States, speaking through Mr. Justice Story, wherein he said: "It may be laid down as an universal rule, that course and distance yield to natural and ascertained objects. But where these are wanting, and the course and distance cannot be reconciled, there is no universal rule that obliges us to prefer the one or the other. Cases may exist, in which the one or the other may be preferred, upon a minute examination of all the circumstances." Preston's Heirs v. Bowmar, 6 Wheat. 581, 5 L. Ed. 336. The road in the instant case was certainly an "ascertained object," an accessory in the sense used in the foregoing opinion.
In United States v. Redondo Dev. Co., 254 Fed. 656, 166 C. C. A. 154, the court, in disposing of a case involving a question of disputed boundary, said:
"The general order of precedence of proofs for determining disputed boundaries gathered from the multitude of adjudicated cases is: First, natural monuments or objects, like mountains, lakes, and streams; second, artificial marks, stakes, or other objects, made or placed by the hand of man, as in this case; third, courses and distances in documents or writings prescribing or reporting the establishment of the lines; lastly, recitals of quantity. But the rule is not imperative. It proceeds upon considerations of the comparative certainty or fallibility of the evidences of the intention of the qualified authority, public or private, by which the boundary was prescribed. The rule is one of construction, and, like all such rules it is not conclusive or final, but is adaptable to circumstances."
See, also, Security L. & Ex. Co. v. Burns, 193 U. S. 167, 24 Sup. Ct. 425, 48 L. Ed. 662; Clark, Surveying and Boundaries, sec. 415.
We can see nothing in the case of Jones v. Andrews, 72 Tex. 5, 9 S. W. 170, or in the case of Hanson v. Township of Red Rock, 4 S. D. 365, 57 N. W. 11, in conflict with the rule stated. In fact, they both accept the rule, but in the particular case the court is governed by the idea expressed in United States v. Redondo Dev. Co., supra, to the effect that the rule is one of construction, and, like all such rules, is not conclusive or final, but is adaptable to circumstances.
A motion was made in apt time and argued and submitted at the time this case was argued on the merits, to strike a certain portion of appellant's opening brief. The matter alluded to is an attack upon one of the witnesses who testified in behalf of the defendant, and is uncalled for, without justification, inexcusable, and a gross abuse of the privilege enjoyed by an attorney. It is ordered that the motion be sustained, and that the matter complained of be stricken from appellant's opening brief.
February 9, 1925.
232 Pac. 1080.
It is further ordered that the judgment be, and the same is hereby, affirmed.
Ducker, C. J.: I concur.
Sanders, J.: I dissent.