Retracements- Following the Footsteps Presented By Walter G Robillard and Kimberly A Buchheit First Edition December 15 2013 Course Handout and Study Guide copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey Introduction The phrase ldquoFollowing the Footstepsrdquo is mentioned in numerous court decisions from local jurisdictions in various states to the Supreme Court of the United States This presentation will place these three critical words under a magnifying glass as the courts have done Using decisions and opinions from the various courts the instructors will reveal the elements that the modern surveyor should be aware of when seeking to ldquoFollow the Footstepsrdquo left behind from past surveys The presentation will discuss the courtsrsquo explanations about the importance of ldquoFootstepsrdquo how to identify them how to separate them what they are and how to classify them The attendees should leave this presentation with an understanding of the rulings from the courts and thus the ability to apply the common law principles that continue to define the phrase ldquoFollowing the Footstepsrdquo Go Green Hints Take a look before you hit the print button There are many useful links provided and you may wish view the pdf document on your computer or reader to access them Save the document and you can come back to do more surfing when inspired
NJSPLS SurvCon 2014 Page | 2
ldquoFollowing the Footstepsrdquo What does it mean exactly
Where does this term come from As Surveyors why do we use this term so freely
The courts have established the duty of the modern boundary surveyor to be the retracement of the footsteps of the original locating surveyor (Vanishing Footsteps of the Original Surveyor Clayton Orn Report of the Fifth Texas Surveyors Short Course Conference 1952)
The surveyor shall exert every reasonable effort to recover the corners established by the original surveyors of the grants included in the project area
The question is not where an entirely accurate survey would locate the lines but where did the original survey locate such lines (A Treatise on the Law of Surveying and Boundaries FE Clark 1939)
Source- httponlinemanualstxdotgovtxdotmanualsessesspdf Blackrsquos Law Dictionary 1968 states ldquofootsteps (prints)rdquo are
ldquoIn the law of evidence impressions made upon the earth snow or other surface by the feet of persons or by the shoes boots or other covering of the feetrdquo
This appears to be a very literal definition like the type of footsteps that a burglar leaves behind General Definition 1 the mark of the foot TRACK 2a TREAD 2b distance covered by a step PACE 3 a step on which to ascend or descend 4 a way of life conduct or action ltfollowed in his fathers footstepsgt Footstep Merriam-Webstercom Merriam-Webster nd Web 15 Dec 2013 lthttpwwwmerriam-webstercomdictionaryfootstepgt
NJSPLS SurvCon 2014 Page | 3
Philosophical
ldquoDo not seek to follow in the footsteps of the wise Seek what they soughtrdquo -Matsuo Basho (1644-1694)
This is more poetic and open to interpretation Oddly this philosophy seems to apply to our tasks and systematic survey processes WHAT ARE THE SURVEYORS FOOTSTEPS OR FOOTPRINTS PERSPECTIVES --ldquoLEGALrdquo FOOTPRINTS 1 Footprints can be on paper or on the ground 2 Footprints are created 3 After creation they must be identified 4 Once created they must be recovered 5 Once recovered they must be interpreted 6 Then they must be explained
FOOTSTEPS HAVE MANY DEFINITIONS Footsteps are created and then describedhellip and hopefully and ultimately found in many places 1 In records 2 On the ground 3 Under the ground 4 Possibly high in the air WHAT ARE THE VARIOUS FORMS OF FOOTSTEPS Physical footsteps Technical footsteps Historical footsteps Legal footsteps
Separating and classifying ldquofootstepsrdquo may be necessary for various reasons
NJSPLS SurvCon 2014 Page | 4
WHAT DOES IT TAKE TO FIND AND ANALYZE FOOTSTEPS All the Senses
Sight Hearing Taste Smell Touch The Sixth Sense OTHER TechnologyTools
TO FIND AND FOLLOW FOOTSTEPS ONE MUST EMPLOY Scientific Method
o Ask a Question o Do Background Research o Construct a Hypothesis o Test Your Hypothesis by Doing an Experiment o Analyze Your Data and Draw a Conclusion o Communicate Your Results
Investigative Techniques-Research
Research is a process of steps used to collect and analyze information to increase our understanding of a topic or issue It consists of three steps Pose a question collect data to answer the question and present an answer to the question
Various Skills-as applicable Traditional and Non-Traditional ToolsEquipment-as applicable TO FOLLOW FOOTSTEPS YOU MAY ALSO NEED Intuition Perseverance Imagination Dedication Talent Luck A Sense of Adventure Curiosity Patience Common Sense A Desire to Solve Problems Ability to Delve into the Unknown
NJSPLS SurvCon 2014 Page | 5
HOW DO YOU GET STARTED Always take a few moments to consider the Original Surveyorrsquos capabilities and limitations based on a variety of factors involved in the original survey Think about how these considerations would help you to ldquofind the footstepsrdquo Item Considerations Notes Bearings Magnetic Astronomic Geodetic etc
Angles Measurement Equipment
Calculations
Distances Units and Equipment Theoretical Conversions vs Measurements
Methods Possible Techniques Used
Special Circumstances Instructions Logistics Budget Time
Misc Various Sources of Error and their Magnitude Blunders
FOLLOW THE FOOTSTEPS OR THE PRIORITY OF CALLS 1) Lines actually run in the field and proven from evidence 2) Monuments andor Boundaries set and called for in the description
Natural Monuments Artificial Monuments
3) Adjoiners (if Senior) 4) Courses
Bearings then Distances (Metes and Bounds States) Distances then Bearings (GLO States)
5) Recitation of Area May be controlling May be evidentiary
6) Coordinates
NJSPLS SurvCon 2014 Page | 6
HOW CAN YOU BE SURE THAT YOU FOUND THE FOOTSTEPS Maybe it depends on what you have to work withhellip Score these items on the Desirability Scale (Least Desired =1 Most Desired =10) Make additional suggestions for preferable items and be prepared to discuss
Score Item Description(s) Deed(s) Plat(s) MapsRecord(s) Monuments on the Ground (Natural or Artificial) Certified Survey Drawings Other Evidence Witness Testimony Small Clues-Puzzle Pieces
general direction a distance ties to a well-defined feature an ownerrsquos name a street address
Nothing at All State Plane Coordinates Adjoining Deeds Suggestion Suggestion SUMMARY What exactly are the Footsteps
Original = Creates Footsteps Retracement = Follows Footsteps
For Professional Consideration What do your Footsteps Look Like hellipNow and 50 years from now 100 200 etc Will future Surveyorrsquos be able to Track Them
NJSPLS SurvCon 2014 Page | 7
WHAT THE COURTS HAVE SAID CASE STUDY 1 (Stafford v King) Caroline C Stafford v Adam C King Supreme Court of Texas 30 Tex 257 April 1867 Decided Highlight The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Topics for Discussion
Familiar patterns of considering evidence Retracement Elements are closely linked Following the Footsteps is ldquoapplying the Priority of Callsrdquo
Miscellaneous Tidbit MINIMUM STANDARDS OF PRACTICE as approved by The Board of Texas Land Surveying (1992 August 2011 current) 22 Texas Administrative Code sect66316 Boundary Construction When delineating a property or boundary line as an integral portion of a survey the surveyor shall respect juniorsenior property rights footsteps of the original surveyor the record the intent as evidenced by the record proper application of the rules of dignity or the priority of calls and applicable statutory and case law of Texas CASE STUDY 2 (Rivers v Lozeau) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-Appellants District Court of Appeal of Florida Fifth District 539 So2d 1147 (1989) February 23 1989 Rehearing Denied March 23 1989 Highlight hellipa surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot
NJSPLS SurvCon 2014 Page | 8
establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it Topic for Discussion Expressed intent in a deed can give great weight to monuments However if monuments are not called for in the deed then intent cannot be known CASE STUDY 3 (United States v Champion Papers) UNITED STATES of America Plaintiff v CHAMPION PAPERS INC Defendant 361 FSupp 481 (1973) Civ A No 69-H-896 United States District Court S D Texas Houston Division May 17 1973 Highlight
The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable
Topics for Discussion
Getting back to the Original Survey Priority of Calls aids the Court to determine best evidence Priority can be superseded by ldquoIntention of the Partiesrdquo in some cases
CASE STUDY 4 (Titus v Chapman) STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant SUPREME COURT OF SOUTH DAKOTA 2004 SD 106 687 NW2d 918 Highlights and Topics for Discussion Original monuments those located by the original surveyor mark true corners Where the location of the original monument can be found or can be established by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere
The record indicates that Tituses survey complied hellip in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
NJSPLS SurvCon 2014 Page | 9
There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law
CASE STUDY 5 (The State of New Jersey v Coleman) THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct February 1832 Decided Bonus Resources for Reference TITLE VI COUNTIES (Reference 1846) httpnjlegallibrutgersedustatutes1846rs1846t06pdf New Jersey Map 1834 (Reference) httpmapmakerrutgerseduNJ_1834gif Salem County Timeline 1700-1799 (Reference) httpwwwsalemcountynjgovcmssitedownloadsdepartmentsArchives20OfficeTIME20LINE20II20170020to201799pdf Highlight If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State Topic for Discussion
Certificate ldquoVoidedrdquo because work was not done in accordance with Rules
CASE STUDY 6 (Hofer v Carino) WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS Supreme Court of New Jersey 4 NJ 244 72 A2d 335 1950 NJ Highlights and Topics for Discussion Whenever the location of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence It is a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances and admeasurements and ideal lines should yield to known and fixed monuments natural or artificial upon the ground itself The line of an avenue or public way if its location is not in dispute is a monument
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
NJSPLS SurvCon 2014 Page | 2
ldquoFollowing the Footstepsrdquo What does it mean exactly
Where does this term come from As Surveyors why do we use this term so freely
The courts have established the duty of the modern boundary surveyor to be the retracement of the footsteps of the original locating surveyor (Vanishing Footsteps of the Original Surveyor Clayton Orn Report of the Fifth Texas Surveyors Short Course Conference 1952)
The surveyor shall exert every reasonable effort to recover the corners established by the original surveyors of the grants included in the project area
The question is not where an entirely accurate survey would locate the lines but where did the original survey locate such lines (A Treatise on the Law of Surveying and Boundaries FE Clark 1939)
Source- httponlinemanualstxdotgovtxdotmanualsessesspdf Blackrsquos Law Dictionary 1968 states ldquofootsteps (prints)rdquo are
ldquoIn the law of evidence impressions made upon the earth snow or other surface by the feet of persons or by the shoes boots or other covering of the feetrdquo
This appears to be a very literal definition like the type of footsteps that a burglar leaves behind General Definition 1 the mark of the foot TRACK 2a TREAD 2b distance covered by a step PACE 3 a step on which to ascend or descend 4 a way of life conduct or action ltfollowed in his fathers footstepsgt Footstep Merriam-Webstercom Merriam-Webster nd Web 15 Dec 2013 lthttpwwwmerriam-webstercomdictionaryfootstepgt
NJSPLS SurvCon 2014 Page | 3
Philosophical
ldquoDo not seek to follow in the footsteps of the wise Seek what they soughtrdquo -Matsuo Basho (1644-1694)
This is more poetic and open to interpretation Oddly this philosophy seems to apply to our tasks and systematic survey processes WHAT ARE THE SURVEYORS FOOTSTEPS OR FOOTPRINTS PERSPECTIVES --ldquoLEGALrdquo FOOTPRINTS 1 Footprints can be on paper or on the ground 2 Footprints are created 3 After creation they must be identified 4 Once created they must be recovered 5 Once recovered they must be interpreted 6 Then they must be explained
FOOTSTEPS HAVE MANY DEFINITIONS Footsteps are created and then describedhellip and hopefully and ultimately found in many places 1 In records 2 On the ground 3 Under the ground 4 Possibly high in the air WHAT ARE THE VARIOUS FORMS OF FOOTSTEPS Physical footsteps Technical footsteps Historical footsteps Legal footsteps
Separating and classifying ldquofootstepsrdquo may be necessary for various reasons
NJSPLS SurvCon 2014 Page | 4
WHAT DOES IT TAKE TO FIND AND ANALYZE FOOTSTEPS All the Senses
Sight Hearing Taste Smell Touch The Sixth Sense OTHER TechnologyTools
TO FIND AND FOLLOW FOOTSTEPS ONE MUST EMPLOY Scientific Method
o Ask a Question o Do Background Research o Construct a Hypothesis o Test Your Hypothesis by Doing an Experiment o Analyze Your Data and Draw a Conclusion o Communicate Your Results
Investigative Techniques-Research
Research is a process of steps used to collect and analyze information to increase our understanding of a topic or issue It consists of three steps Pose a question collect data to answer the question and present an answer to the question
Various Skills-as applicable Traditional and Non-Traditional ToolsEquipment-as applicable TO FOLLOW FOOTSTEPS YOU MAY ALSO NEED Intuition Perseverance Imagination Dedication Talent Luck A Sense of Adventure Curiosity Patience Common Sense A Desire to Solve Problems Ability to Delve into the Unknown
NJSPLS SurvCon 2014 Page | 5
HOW DO YOU GET STARTED Always take a few moments to consider the Original Surveyorrsquos capabilities and limitations based on a variety of factors involved in the original survey Think about how these considerations would help you to ldquofind the footstepsrdquo Item Considerations Notes Bearings Magnetic Astronomic Geodetic etc
Angles Measurement Equipment
Calculations
Distances Units and Equipment Theoretical Conversions vs Measurements
Methods Possible Techniques Used
Special Circumstances Instructions Logistics Budget Time
Misc Various Sources of Error and their Magnitude Blunders
FOLLOW THE FOOTSTEPS OR THE PRIORITY OF CALLS 1) Lines actually run in the field and proven from evidence 2) Monuments andor Boundaries set and called for in the description
Natural Monuments Artificial Monuments
3) Adjoiners (if Senior) 4) Courses
Bearings then Distances (Metes and Bounds States) Distances then Bearings (GLO States)
5) Recitation of Area May be controlling May be evidentiary
6) Coordinates
NJSPLS SurvCon 2014 Page | 6
HOW CAN YOU BE SURE THAT YOU FOUND THE FOOTSTEPS Maybe it depends on what you have to work withhellip Score these items on the Desirability Scale (Least Desired =1 Most Desired =10) Make additional suggestions for preferable items and be prepared to discuss
Score Item Description(s) Deed(s) Plat(s) MapsRecord(s) Monuments on the Ground (Natural or Artificial) Certified Survey Drawings Other Evidence Witness Testimony Small Clues-Puzzle Pieces
general direction a distance ties to a well-defined feature an ownerrsquos name a street address
Nothing at All State Plane Coordinates Adjoining Deeds Suggestion Suggestion SUMMARY What exactly are the Footsteps
Original = Creates Footsteps Retracement = Follows Footsteps
For Professional Consideration What do your Footsteps Look Like hellipNow and 50 years from now 100 200 etc Will future Surveyorrsquos be able to Track Them
NJSPLS SurvCon 2014 Page | 7
WHAT THE COURTS HAVE SAID CASE STUDY 1 (Stafford v King) Caroline C Stafford v Adam C King Supreme Court of Texas 30 Tex 257 April 1867 Decided Highlight The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Topics for Discussion
Familiar patterns of considering evidence Retracement Elements are closely linked Following the Footsteps is ldquoapplying the Priority of Callsrdquo
Miscellaneous Tidbit MINIMUM STANDARDS OF PRACTICE as approved by The Board of Texas Land Surveying (1992 August 2011 current) 22 Texas Administrative Code sect66316 Boundary Construction When delineating a property or boundary line as an integral portion of a survey the surveyor shall respect juniorsenior property rights footsteps of the original surveyor the record the intent as evidenced by the record proper application of the rules of dignity or the priority of calls and applicable statutory and case law of Texas CASE STUDY 2 (Rivers v Lozeau) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-Appellants District Court of Appeal of Florida Fifth District 539 So2d 1147 (1989) February 23 1989 Rehearing Denied March 23 1989 Highlight hellipa surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot
NJSPLS SurvCon 2014 Page | 8
establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it Topic for Discussion Expressed intent in a deed can give great weight to monuments However if monuments are not called for in the deed then intent cannot be known CASE STUDY 3 (United States v Champion Papers) UNITED STATES of America Plaintiff v CHAMPION PAPERS INC Defendant 361 FSupp 481 (1973) Civ A No 69-H-896 United States District Court S D Texas Houston Division May 17 1973 Highlight
The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable
Topics for Discussion
Getting back to the Original Survey Priority of Calls aids the Court to determine best evidence Priority can be superseded by ldquoIntention of the Partiesrdquo in some cases
CASE STUDY 4 (Titus v Chapman) STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant SUPREME COURT OF SOUTH DAKOTA 2004 SD 106 687 NW2d 918 Highlights and Topics for Discussion Original monuments those located by the original surveyor mark true corners Where the location of the original monument can be found or can be established by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere
The record indicates that Tituses survey complied hellip in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
NJSPLS SurvCon 2014 Page | 9
There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law
CASE STUDY 5 (The State of New Jersey v Coleman) THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct February 1832 Decided Bonus Resources for Reference TITLE VI COUNTIES (Reference 1846) httpnjlegallibrutgersedustatutes1846rs1846t06pdf New Jersey Map 1834 (Reference) httpmapmakerrutgerseduNJ_1834gif Salem County Timeline 1700-1799 (Reference) httpwwwsalemcountynjgovcmssitedownloadsdepartmentsArchives20OfficeTIME20LINE20II20170020to201799pdf Highlight If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State Topic for Discussion
Certificate ldquoVoidedrdquo because work was not done in accordance with Rules
CASE STUDY 6 (Hofer v Carino) WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS Supreme Court of New Jersey 4 NJ 244 72 A2d 335 1950 NJ Highlights and Topics for Discussion Whenever the location of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence It is a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances and admeasurements and ideal lines should yield to known and fixed monuments natural or artificial upon the ground itself The line of an avenue or public way if its location is not in dispute is a monument
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
NJSPLS SurvCon 2014 Page | 3
Philosophical
ldquoDo not seek to follow in the footsteps of the wise Seek what they soughtrdquo -Matsuo Basho (1644-1694)
This is more poetic and open to interpretation Oddly this philosophy seems to apply to our tasks and systematic survey processes WHAT ARE THE SURVEYORS FOOTSTEPS OR FOOTPRINTS PERSPECTIVES --ldquoLEGALrdquo FOOTPRINTS 1 Footprints can be on paper or on the ground 2 Footprints are created 3 After creation they must be identified 4 Once created they must be recovered 5 Once recovered they must be interpreted 6 Then they must be explained
FOOTSTEPS HAVE MANY DEFINITIONS Footsteps are created and then describedhellip and hopefully and ultimately found in many places 1 In records 2 On the ground 3 Under the ground 4 Possibly high in the air WHAT ARE THE VARIOUS FORMS OF FOOTSTEPS Physical footsteps Technical footsteps Historical footsteps Legal footsteps
Separating and classifying ldquofootstepsrdquo may be necessary for various reasons
NJSPLS SurvCon 2014 Page | 4
WHAT DOES IT TAKE TO FIND AND ANALYZE FOOTSTEPS All the Senses
Sight Hearing Taste Smell Touch The Sixth Sense OTHER TechnologyTools
TO FIND AND FOLLOW FOOTSTEPS ONE MUST EMPLOY Scientific Method
o Ask a Question o Do Background Research o Construct a Hypothesis o Test Your Hypothesis by Doing an Experiment o Analyze Your Data and Draw a Conclusion o Communicate Your Results
Investigative Techniques-Research
Research is a process of steps used to collect and analyze information to increase our understanding of a topic or issue It consists of three steps Pose a question collect data to answer the question and present an answer to the question
Various Skills-as applicable Traditional and Non-Traditional ToolsEquipment-as applicable TO FOLLOW FOOTSTEPS YOU MAY ALSO NEED Intuition Perseverance Imagination Dedication Talent Luck A Sense of Adventure Curiosity Patience Common Sense A Desire to Solve Problems Ability to Delve into the Unknown
NJSPLS SurvCon 2014 Page | 5
HOW DO YOU GET STARTED Always take a few moments to consider the Original Surveyorrsquos capabilities and limitations based on a variety of factors involved in the original survey Think about how these considerations would help you to ldquofind the footstepsrdquo Item Considerations Notes Bearings Magnetic Astronomic Geodetic etc
Angles Measurement Equipment
Calculations
Distances Units and Equipment Theoretical Conversions vs Measurements
Methods Possible Techniques Used
Special Circumstances Instructions Logistics Budget Time
Misc Various Sources of Error and their Magnitude Blunders
FOLLOW THE FOOTSTEPS OR THE PRIORITY OF CALLS 1) Lines actually run in the field and proven from evidence 2) Monuments andor Boundaries set and called for in the description
Natural Monuments Artificial Monuments
3) Adjoiners (if Senior) 4) Courses
Bearings then Distances (Metes and Bounds States) Distances then Bearings (GLO States)
5) Recitation of Area May be controlling May be evidentiary
6) Coordinates
NJSPLS SurvCon 2014 Page | 6
HOW CAN YOU BE SURE THAT YOU FOUND THE FOOTSTEPS Maybe it depends on what you have to work withhellip Score these items on the Desirability Scale (Least Desired =1 Most Desired =10) Make additional suggestions for preferable items and be prepared to discuss
Score Item Description(s) Deed(s) Plat(s) MapsRecord(s) Monuments on the Ground (Natural or Artificial) Certified Survey Drawings Other Evidence Witness Testimony Small Clues-Puzzle Pieces
general direction a distance ties to a well-defined feature an ownerrsquos name a street address
Nothing at All State Plane Coordinates Adjoining Deeds Suggestion Suggestion SUMMARY What exactly are the Footsteps
Original = Creates Footsteps Retracement = Follows Footsteps
For Professional Consideration What do your Footsteps Look Like hellipNow and 50 years from now 100 200 etc Will future Surveyorrsquos be able to Track Them
NJSPLS SurvCon 2014 Page | 7
WHAT THE COURTS HAVE SAID CASE STUDY 1 (Stafford v King) Caroline C Stafford v Adam C King Supreme Court of Texas 30 Tex 257 April 1867 Decided Highlight The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Topics for Discussion
Familiar patterns of considering evidence Retracement Elements are closely linked Following the Footsteps is ldquoapplying the Priority of Callsrdquo
Miscellaneous Tidbit MINIMUM STANDARDS OF PRACTICE as approved by The Board of Texas Land Surveying (1992 August 2011 current) 22 Texas Administrative Code sect66316 Boundary Construction When delineating a property or boundary line as an integral portion of a survey the surveyor shall respect juniorsenior property rights footsteps of the original surveyor the record the intent as evidenced by the record proper application of the rules of dignity or the priority of calls and applicable statutory and case law of Texas CASE STUDY 2 (Rivers v Lozeau) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-Appellants District Court of Appeal of Florida Fifth District 539 So2d 1147 (1989) February 23 1989 Rehearing Denied March 23 1989 Highlight hellipa surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot
NJSPLS SurvCon 2014 Page | 8
establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it Topic for Discussion Expressed intent in a deed can give great weight to monuments However if monuments are not called for in the deed then intent cannot be known CASE STUDY 3 (United States v Champion Papers) UNITED STATES of America Plaintiff v CHAMPION PAPERS INC Defendant 361 FSupp 481 (1973) Civ A No 69-H-896 United States District Court S D Texas Houston Division May 17 1973 Highlight
The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable
Topics for Discussion
Getting back to the Original Survey Priority of Calls aids the Court to determine best evidence Priority can be superseded by ldquoIntention of the Partiesrdquo in some cases
CASE STUDY 4 (Titus v Chapman) STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant SUPREME COURT OF SOUTH DAKOTA 2004 SD 106 687 NW2d 918 Highlights and Topics for Discussion Original monuments those located by the original surveyor mark true corners Where the location of the original monument can be found or can be established by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere
The record indicates that Tituses survey complied hellip in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
NJSPLS SurvCon 2014 Page | 9
There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law
CASE STUDY 5 (The State of New Jersey v Coleman) THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct February 1832 Decided Bonus Resources for Reference TITLE VI COUNTIES (Reference 1846) httpnjlegallibrutgersedustatutes1846rs1846t06pdf New Jersey Map 1834 (Reference) httpmapmakerrutgerseduNJ_1834gif Salem County Timeline 1700-1799 (Reference) httpwwwsalemcountynjgovcmssitedownloadsdepartmentsArchives20OfficeTIME20LINE20II20170020to201799pdf Highlight If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State Topic for Discussion
Certificate ldquoVoidedrdquo because work was not done in accordance with Rules
CASE STUDY 6 (Hofer v Carino) WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS Supreme Court of New Jersey 4 NJ 244 72 A2d 335 1950 NJ Highlights and Topics for Discussion Whenever the location of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence It is a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances and admeasurements and ideal lines should yield to known and fixed monuments natural or artificial upon the ground itself The line of an avenue or public way if its location is not in dispute is a monument
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
NJSPLS SurvCon 2014 Page | 4
WHAT DOES IT TAKE TO FIND AND ANALYZE FOOTSTEPS All the Senses
Sight Hearing Taste Smell Touch The Sixth Sense OTHER TechnologyTools
TO FIND AND FOLLOW FOOTSTEPS ONE MUST EMPLOY Scientific Method
o Ask a Question o Do Background Research o Construct a Hypothesis o Test Your Hypothesis by Doing an Experiment o Analyze Your Data and Draw a Conclusion o Communicate Your Results
Investigative Techniques-Research
Research is a process of steps used to collect and analyze information to increase our understanding of a topic or issue It consists of three steps Pose a question collect data to answer the question and present an answer to the question
Various Skills-as applicable Traditional and Non-Traditional ToolsEquipment-as applicable TO FOLLOW FOOTSTEPS YOU MAY ALSO NEED Intuition Perseverance Imagination Dedication Talent Luck A Sense of Adventure Curiosity Patience Common Sense A Desire to Solve Problems Ability to Delve into the Unknown
NJSPLS SurvCon 2014 Page | 5
HOW DO YOU GET STARTED Always take a few moments to consider the Original Surveyorrsquos capabilities and limitations based on a variety of factors involved in the original survey Think about how these considerations would help you to ldquofind the footstepsrdquo Item Considerations Notes Bearings Magnetic Astronomic Geodetic etc
Angles Measurement Equipment
Calculations
Distances Units and Equipment Theoretical Conversions vs Measurements
Methods Possible Techniques Used
Special Circumstances Instructions Logistics Budget Time
Misc Various Sources of Error and their Magnitude Blunders
FOLLOW THE FOOTSTEPS OR THE PRIORITY OF CALLS 1) Lines actually run in the field and proven from evidence 2) Monuments andor Boundaries set and called for in the description
Natural Monuments Artificial Monuments
3) Adjoiners (if Senior) 4) Courses
Bearings then Distances (Metes and Bounds States) Distances then Bearings (GLO States)
5) Recitation of Area May be controlling May be evidentiary
6) Coordinates
NJSPLS SurvCon 2014 Page | 6
HOW CAN YOU BE SURE THAT YOU FOUND THE FOOTSTEPS Maybe it depends on what you have to work withhellip Score these items on the Desirability Scale (Least Desired =1 Most Desired =10) Make additional suggestions for preferable items and be prepared to discuss
Score Item Description(s) Deed(s) Plat(s) MapsRecord(s) Monuments on the Ground (Natural or Artificial) Certified Survey Drawings Other Evidence Witness Testimony Small Clues-Puzzle Pieces
general direction a distance ties to a well-defined feature an ownerrsquos name a street address
Nothing at All State Plane Coordinates Adjoining Deeds Suggestion Suggestion SUMMARY What exactly are the Footsteps
Original = Creates Footsteps Retracement = Follows Footsteps
For Professional Consideration What do your Footsteps Look Like hellipNow and 50 years from now 100 200 etc Will future Surveyorrsquos be able to Track Them
NJSPLS SurvCon 2014 Page | 7
WHAT THE COURTS HAVE SAID CASE STUDY 1 (Stafford v King) Caroline C Stafford v Adam C King Supreme Court of Texas 30 Tex 257 April 1867 Decided Highlight The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Topics for Discussion
Familiar patterns of considering evidence Retracement Elements are closely linked Following the Footsteps is ldquoapplying the Priority of Callsrdquo
Miscellaneous Tidbit MINIMUM STANDARDS OF PRACTICE as approved by The Board of Texas Land Surveying (1992 August 2011 current) 22 Texas Administrative Code sect66316 Boundary Construction When delineating a property or boundary line as an integral portion of a survey the surveyor shall respect juniorsenior property rights footsteps of the original surveyor the record the intent as evidenced by the record proper application of the rules of dignity or the priority of calls and applicable statutory and case law of Texas CASE STUDY 2 (Rivers v Lozeau) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-Appellants District Court of Appeal of Florida Fifth District 539 So2d 1147 (1989) February 23 1989 Rehearing Denied March 23 1989 Highlight hellipa surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot
NJSPLS SurvCon 2014 Page | 8
establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it Topic for Discussion Expressed intent in a deed can give great weight to monuments However if monuments are not called for in the deed then intent cannot be known CASE STUDY 3 (United States v Champion Papers) UNITED STATES of America Plaintiff v CHAMPION PAPERS INC Defendant 361 FSupp 481 (1973) Civ A No 69-H-896 United States District Court S D Texas Houston Division May 17 1973 Highlight
The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable
Topics for Discussion
Getting back to the Original Survey Priority of Calls aids the Court to determine best evidence Priority can be superseded by ldquoIntention of the Partiesrdquo in some cases
CASE STUDY 4 (Titus v Chapman) STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant SUPREME COURT OF SOUTH DAKOTA 2004 SD 106 687 NW2d 918 Highlights and Topics for Discussion Original monuments those located by the original surveyor mark true corners Where the location of the original monument can be found or can be established by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere
The record indicates that Tituses survey complied hellip in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
NJSPLS SurvCon 2014 Page | 9
There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law
CASE STUDY 5 (The State of New Jersey v Coleman) THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct February 1832 Decided Bonus Resources for Reference TITLE VI COUNTIES (Reference 1846) httpnjlegallibrutgersedustatutes1846rs1846t06pdf New Jersey Map 1834 (Reference) httpmapmakerrutgerseduNJ_1834gif Salem County Timeline 1700-1799 (Reference) httpwwwsalemcountynjgovcmssitedownloadsdepartmentsArchives20OfficeTIME20LINE20II20170020to201799pdf Highlight If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State Topic for Discussion
Certificate ldquoVoidedrdquo because work was not done in accordance with Rules
CASE STUDY 6 (Hofer v Carino) WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS Supreme Court of New Jersey 4 NJ 244 72 A2d 335 1950 NJ Highlights and Topics for Discussion Whenever the location of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence It is a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances and admeasurements and ideal lines should yield to known and fixed monuments natural or artificial upon the ground itself The line of an avenue or public way if its location is not in dispute is a monument
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
NJSPLS SurvCon 2014 Page | 5
HOW DO YOU GET STARTED Always take a few moments to consider the Original Surveyorrsquos capabilities and limitations based on a variety of factors involved in the original survey Think about how these considerations would help you to ldquofind the footstepsrdquo Item Considerations Notes Bearings Magnetic Astronomic Geodetic etc
Angles Measurement Equipment
Calculations
Distances Units and Equipment Theoretical Conversions vs Measurements
Methods Possible Techniques Used
Special Circumstances Instructions Logistics Budget Time
Misc Various Sources of Error and their Magnitude Blunders
FOLLOW THE FOOTSTEPS OR THE PRIORITY OF CALLS 1) Lines actually run in the field and proven from evidence 2) Monuments andor Boundaries set and called for in the description
Natural Monuments Artificial Monuments
3) Adjoiners (if Senior) 4) Courses
Bearings then Distances (Metes and Bounds States) Distances then Bearings (GLO States)
5) Recitation of Area May be controlling May be evidentiary
6) Coordinates
NJSPLS SurvCon 2014 Page | 6
HOW CAN YOU BE SURE THAT YOU FOUND THE FOOTSTEPS Maybe it depends on what you have to work withhellip Score these items on the Desirability Scale (Least Desired =1 Most Desired =10) Make additional suggestions for preferable items and be prepared to discuss
Score Item Description(s) Deed(s) Plat(s) MapsRecord(s) Monuments on the Ground (Natural or Artificial) Certified Survey Drawings Other Evidence Witness Testimony Small Clues-Puzzle Pieces
general direction a distance ties to a well-defined feature an ownerrsquos name a street address
Nothing at All State Plane Coordinates Adjoining Deeds Suggestion Suggestion SUMMARY What exactly are the Footsteps
Original = Creates Footsteps Retracement = Follows Footsteps
For Professional Consideration What do your Footsteps Look Like hellipNow and 50 years from now 100 200 etc Will future Surveyorrsquos be able to Track Them
NJSPLS SurvCon 2014 Page | 7
WHAT THE COURTS HAVE SAID CASE STUDY 1 (Stafford v King) Caroline C Stafford v Adam C King Supreme Court of Texas 30 Tex 257 April 1867 Decided Highlight The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Topics for Discussion
Familiar patterns of considering evidence Retracement Elements are closely linked Following the Footsteps is ldquoapplying the Priority of Callsrdquo
Miscellaneous Tidbit MINIMUM STANDARDS OF PRACTICE as approved by The Board of Texas Land Surveying (1992 August 2011 current) 22 Texas Administrative Code sect66316 Boundary Construction When delineating a property or boundary line as an integral portion of a survey the surveyor shall respect juniorsenior property rights footsteps of the original surveyor the record the intent as evidenced by the record proper application of the rules of dignity or the priority of calls and applicable statutory and case law of Texas CASE STUDY 2 (Rivers v Lozeau) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-Appellants District Court of Appeal of Florida Fifth District 539 So2d 1147 (1989) February 23 1989 Rehearing Denied March 23 1989 Highlight hellipa surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot
NJSPLS SurvCon 2014 Page | 8
establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it Topic for Discussion Expressed intent in a deed can give great weight to monuments However if monuments are not called for in the deed then intent cannot be known CASE STUDY 3 (United States v Champion Papers) UNITED STATES of America Plaintiff v CHAMPION PAPERS INC Defendant 361 FSupp 481 (1973) Civ A No 69-H-896 United States District Court S D Texas Houston Division May 17 1973 Highlight
The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable
Topics for Discussion
Getting back to the Original Survey Priority of Calls aids the Court to determine best evidence Priority can be superseded by ldquoIntention of the Partiesrdquo in some cases
CASE STUDY 4 (Titus v Chapman) STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant SUPREME COURT OF SOUTH DAKOTA 2004 SD 106 687 NW2d 918 Highlights and Topics for Discussion Original monuments those located by the original surveyor mark true corners Where the location of the original monument can be found or can be established by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere
The record indicates that Tituses survey complied hellip in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
NJSPLS SurvCon 2014 Page | 9
There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law
CASE STUDY 5 (The State of New Jersey v Coleman) THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct February 1832 Decided Bonus Resources for Reference TITLE VI COUNTIES (Reference 1846) httpnjlegallibrutgersedustatutes1846rs1846t06pdf New Jersey Map 1834 (Reference) httpmapmakerrutgerseduNJ_1834gif Salem County Timeline 1700-1799 (Reference) httpwwwsalemcountynjgovcmssitedownloadsdepartmentsArchives20OfficeTIME20LINE20II20170020to201799pdf Highlight If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State Topic for Discussion
Certificate ldquoVoidedrdquo because work was not done in accordance with Rules
CASE STUDY 6 (Hofer v Carino) WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS Supreme Court of New Jersey 4 NJ 244 72 A2d 335 1950 NJ Highlights and Topics for Discussion Whenever the location of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence It is a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances and admeasurements and ideal lines should yield to known and fixed monuments natural or artificial upon the ground itself The line of an avenue or public way if its location is not in dispute is a monument
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
NJSPLS SurvCon 2014 Page | 6
HOW CAN YOU BE SURE THAT YOU FOUND THE FOOTSTEPS Maybe it depends on what you have to work withhellip Score these items on the Desirability Scale (Least Desired =1 Most Desired =10) Make additional suggestions for preferable items and be prepared to discuss
Score Item Description(s) Deed(s) Plat(s) MapsRecord(s) Monuments on the Ground (Natural or Artificial) Certified Survey Drawings Other Evidence Witness Testimony Small Clues-Puzzle Pieces
general direction a distance ties to a well-defined feature an ownerrsquos name a street address
Nothing at All State Plane Coordinates Adjoining Deeds Suggestion Suggestion SUMMARY What exactly are the Footsteps
Original = Creates Footsteps Retracement = Follows Footsteps
For Professional Consideration What do your Footsteps Look Like hellipNow and 50 years from now 100 200 etc Will future Surveyorrsquos be able to Track Them
NJSPLS SurvCon 2014 Page | 7
WHAT THE COURTS HAVE SAID CASE STUDY 1 (Stafford v King) Caroline C Stafford v Adam C King Supreme Court of Texas 30 Tex 257 April 1867 Decided Highlight The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Topics for Discussion
Familiar patterns of considering evidence Retracement Elements are closely linked Following the Footsteps is ldquoapplying the Priority of Callsrdquo
Miscellaneous Tidbit MINIMUM STANDARDS OF PRACTICE as approved by The Board of Texas Land Surveying (1992 August 2011 current) 22 Texas Administrative Code sect66316 Boundary Construction When delineating a property or boundary line as an integral portion of a survey the surveyor shall respect juniorsenior property rights footsteps of the original surveyor the record the intent as evidenced by the record proper application of the rules of dignity or the priority of calls and applicable statutory and case law of Texas CASE STUDY 2 (Rivers v Lozeau) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-Appellants District Court of Appeal of Florida Fifth District 539 So2d 1147 (1989) February 23 1989 Rehearing Denied March 23 1989 Highlight hellipa surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot
NJSPLS SurvCon 2014 Page | 8
establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it Topic for Discussion Expressed intent in a deed can give great weight to monuments However if monuments are not called for in the deed then intent cannot be known CASE STUDY 3 (United States v Champion Papers) UNITED STATES of America Plaintiff v CHAMPION PAPERS INC Defendant 361 FSupp 481 (1973) Civ A No 69-H-896 United States District Court S D Texas Houston Division May 17 1973 Highlight
The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable
Topics for Discussion
Getting back to the Original Survey Priority of Calls aids the Court to determine best evidence Priority can be superseded by ldquoIntention of the Partiesrdquo in some cases
CASE STUDY 4 (Titus v Chapman) STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant SUPREME COURT OF SOUTH DAKOTA 2004 SD 106 687 NW2d 918 Highlights and Topics for Discussion Original monuments those located by the original surveyor mark true corners Where the location of the original monument can be found or can be established by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere
The record indicates that Tituses survey complied hellip in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
NJSPLS SurvCon 2014 Page | 9
There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law
CASE STUDY 5 (The State of New Jersey v Coleman) THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct February 1832 Decided Bonus Resources for Reference TITLE VI COUNTIES (Reference 1846) httpnjlegallibrutgersedustatutes1846rs1846t06pdf New Jersey Map 1834 (Reference) httpmapmakerrutgerseduNJ_1834gif Salem County Timeline 1700-1799 (Reference) httpwwwsalemcountynjgovcmssitedownloadsdepartmentsArchives20OfficeTIME20LINE20II20170020to201799pdf Highlight If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State Topic for Discussion
Certificate ldquoVoidedrdquo because work was not done in accordance with Rules
CASE STUDY 6 (Hofer v Carino) WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS Supreme Court of New Jersey 4 NJ 244 72 A2d 335 1950 NJ Highlights and Topics for Discussion Whenever the location of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence It is a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances and admeasurements and ideal lines should yield to known and fixed monuments natural or artificial upon the ground itself The line of an avenue or public way if its location is not in dispute is a monument
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
NJSPLS SurvCon 2014 Page | 7
WHAT THE COURTS HAVE SAID CASE STUDY 1 (Stafford v King) Caroline C Stafford v Adam C King Supreme Court of Texas 30 Tex 257 April 1867 Decided Highlight The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Topics for Discussion
Familiar patterns of considering evidence Retracement Elements are closely linked Following the Footsteps is ldquoapplying the Priority of Callsrdquo
Miscellaneous Tidbit MINIMUM STANDARDS OF PRACTICE as approved by The Board of Texas Land Surveying (1992 August 2011 current) 22 Texas Administrative Code sect66316 Boundary Construction When delineating a property or boundary line as an integral portion of a survey the surveyor shall respect juniorsenior property rights footsteps of the original surveyor the record the intent as evidenced by the record proper application of the rules of dignity or the priority of calls and applicable statutory and case law of Texas CASE STUDY 2 (Rivers v Lozeau) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-Appellants District Court of Appeal of Florida Fifth District 539 So2d 1147 (1989) February 23 1989 Rehearing Denied March 23 1989 Highlight hellipa surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot
NJSPLS SurvCon 2014 Page | 8
establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it Topic for Discussion Expressed intent in a deed can give great weight to monuments However if monuments are not called for in the deed then intent cannot be known CASE STUDY 3 (United States v Champion Papers) UNITED STATES of America Plaintiff v CHAMPION PAPERS INC Defendant 361 FSupp 481 (1973) Civ A No 69-H-896 United States District Court S D Texas Houston Division May 17 1973 Highlight
The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable
Topics for Discussion
Getting back to the Original Survey Priority of Calls aids the Court to determine best evidence Priority can be superseded by ldquoIntention of the Partiesrdquo in some cases
CASE STUDY 4 (Titus v Chapman) STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant SUPREME COURT OF SOUTH DAKOTA 2004 SD 106 687 NW2d 918 Highlights and Topics for Discussion Original monuments those located by the original surveyor mark true corners Where the location of the original monument can be found or can be established by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere
The record indicates that Tituses survey complied hellip in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
NJSPLS SurvCon 2014 Page | 9
There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law
CASE STUDY 5 (The State of New Jersey v Coleman) THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct February 1832 Decided Bonus Resources for Reference TITLE VI COUNTIES (Reference 1846) httpnjlegallibrutgersedustatutes1846rs1846t06pdf New Jersey Map 1834 (Reference) httpmapmakerrutgerseduNJ_1834gif Salem County Timeline 1700-1799 (Reference) httpwwwsalemcountynjgovcmssitedownloadsdepartmentsArchives20OfficeTIME20LINE20II20170020to201799pdf Highlight If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State Topic for Discussion
Certificate ldquoVoidedrdquo because work was not done in accordance with Rules
CASE STUDY 6 (Hofer v Carino) WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS Supreme Court of New Jersey 4 NJ 244 72 A2d 335 1950 NJ Highlights and Topics for Discussion Whenever the location of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence It is a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances and admeasurements and ideal lines should yield to known and fixed monuments natural or artificial upon the ground itself The line of an avenue or public way if its location is not in dispute is a monument
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
NJSPLS SurvCon 2014 Page | 8
establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it Topic for Discussion Expressed intent in a deed can give great weight to monuments However if monuments are not called for in the deed then intent cannot be known CASE STUDY 3 (United States v Champion Papers) UNITED STATES of America Plaintiff v CHAMPION PAPERS INC Defendant 361 FSupp 481 (1973) Civ A No 69-H-896 United States District Court S D Texas Houston Division May 17 1973 Highlight
The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable
Topics for Discussion
Getting back to the Original Survey Priority of Calls aids the Court to determine best evidence Priority can be superseded by ldquoIntention of the Partiesrdquo in some cases
CASE STUDY 4 (Titus v Chapman) STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant SUPREME COURT OF SOUTH DAKOTA 2004 SD 106 687 NW2d 918 Highlights and Topics for Discussion Original monuments those located by the original surveyor mark true corners Where the location of the original monument can be found or can be established by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere
The record indicates that Tituses survey complied hellip in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
NJSPLS SurvCon 2014 Page | 9
There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law
CASE STUDY 5 (The State of New Jersey v Coleman) THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct February 1832 Decided Bonus Resources for Reference TITLE VI COUNTIES (Reference 1846) httpnjlegallibrutgersedustatutes1846rs1846t06pdf New Jersey Map 1834 (Reference) httpmapmakerrutgerseduNJ_1834gif Salem County Timeline 1700-1799 (Reference) httpwwwsalemcountynjgovcmssitedownloadsdepartmentsArchives20OfficeTIME20LINE20II20170020to201799pdf Highlight If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State Topic for Discussion
Certificate ldquoVoidedrdquo because work was not done in accordance with Rules
CASE STUDY 6 (Hofer v Carino) WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS Supreme Court of New Jersey 4 NJ 244 72 A2d 335 1950 NJ Highlights and Topics for Discussion Whenever the location of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence It is a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances and admeasurements and ideal lines should yield to known and fixed monuments natural or artificial upon the ground itself The line of an avenue or public way if its location is not in dispute is a monument
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
NJSPLS SurvCon 2014 Page | 9
There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law
CASE STUDY 5 (The State of New Jersey v Coleman) THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct February 1832 Decided Bonus Resources for Reference TITLE VI COUNTIES (Reference 1846) httpnjlegallibrutgersedustatutes1846rs1846t06pdf New Jersey Map 1834 (Reference) httpmapmakerrutgerseduNJ_1834gif Salem County Timeline 1700-1799 (Reference) httpwwwsalemcountynjgovcmssitedownloadsdepartmentsArchives20OfficeTIME20LINE20II20170020to201799pdf Highlight If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State Topic for Discussion
Certificate ldquoVoidedrdquo because work was not done in accordance with Rules
CASE STUDY 6 (Hofer v Carino) WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS Supreme Court of New Jersey 4 NJ 244 72 A2d 335 1950 NJ Highlights and Topics for Discussion Whenever the location of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence It is a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances and admeasurements and ideal lines should yield to known and fixed monuments natural or artificial upon the ground itself The line of an avenue or public way if its location is not in dispute is a monument
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
NJSPLS SurvCon 2014 Page | 10
The starting call of a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Note Definition of Trial De Novo A trial held on appeal in which the appeals court holds a trial as if no prior trial had been held considering the evidence anew rather than reviewing the lower courts decision for correctness Source- httpwwwnolocomdictionarytrial-de-novo-termhtml CASE LINKS (in Public Domain if available) Note Continue to Appendix for textprint versions and additional cases
CASE STUDY 1 Stafford v King httpwwwgooglecomurlsa=tamprct=jampq=ampesrc=sampfrm=1ampsource=webampcd=2ampved=0CEUQFjABampurl=http3A2F2Ftxlstexasgov2Fwp-content2Fuploads2F20132F012FStafford_v_King_30_Tex_257rtfampei=tz6rUrXhHoa1kQfIlIGQBQampusg=AFQjCNFI0mFI4MS-LZfe4iKS_rBeQvRHZAampsig2=psFzcLc88pACuyRgWoQ49Aampbvm=bv57967247deW0
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
APPENDIX
THE CASES Retracements- Following the Footsteps copy Walter G Robillard and Kimberly A Buchheit NJSLPS SurvCon 2014 Wednesday February 5 2014 1 PM - 5 PM Ballyrsquos Park Place Hotel and Casino Atlantic City New Jersey
Table of Contents
CASE STUDY
Name Appendix Pages
1 Stafford v King ii-xiii 2 Rivers v Lozeau xiv-xviii 3 United States v Champion Papers xix-xxvi 4 Titus v Chapman xxvii-xxxiii 5 The State of New Jersey v Coleman xxxiv-xxxviii 6 Hofner v Carino xxxix-xlii Excerpts from
Clark on Surveying and Boundaries Fifth Edition Chapter 14 (pgs 335-337)
xliii-xliv
Excerpts from Brownrsquos Boundary Control and Legal Principles Sixth Edition (misc)
xlv-xlix
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page ii |Appendix
++++++ CASE 1 ++++++
Caroline C Stafford v Adam C King SUPREME COURT OF TEXAS
30 Tex 257 April 1867 Decided
KEY POINTS It is the duty of a surveyor of the public land to run round the land located and to see that such objects are designated as will clearly identify the locality and to call for these objects natural and artificial in his field-notes of the survey and when the field-notes assert that the survey has been made the calls will be presumed to be true until the contrary is proved and as to lost calls the presumption will be indulged that they have been destroyed or defaced and even if it be established that the land was not in fact surveyed the patent will not be held void if the boundaries can be identified by any reasonable evidence If there be a defined beginning-point the boundaries may be established by course and distance alone (16 Tex 440) Natural objects are mountains lakes rivers creeks rocks and the like artificial objects are marked trees stakes mounds etc constructed by others or the surveyor and called for in the field-notes and they should be inserted in the patent (Paschalrsquos Dig Art 5294 note 1144) In all future controversies these calls are to be searched for and if found there can be little room for controversy about the boundaries if not found or found out of their places then the rules of law must control The general rules as to controlling calls are 1 natural objects 2 artificial objects 3 course and distance (Pas Dig Art 5294 note 1144) The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contradictory results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding circumstances The most material and certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control course and distance (Pas Dig Art 5294 note 1144) Course and distance are the most unreliable calls distance is less reliable than course because of the mistakes of the officers over which the locator has no control but of natural and artificial objects the locator can take note on the ground hence the general rule that course and distance yield to natural objects while under certain circumstances course and distance may control yet generally they are but guides to the other calls The actual identification of the survey the footsteps of the surveyor upon the ground should always be followed by whatever rule they may be traced Calls are also divided into descriptive or directory and special locative calls The former although consisting of lakes and creeks must yield to special locative calls that is to particular objects upon the corners or lines of the land Where a survey called to commence in the immediate neighborhood of a well-known corner and to run east three thousand one hundred and sixty varas to the corner of another survey and by following the distance not one of the natural or artificial objects called for could be found at the places named whereas if the first line stopped at the distance of seven hundred and fifty varas every crossing of the creek spring and artificial object called for were found the long distance called for was disregarded and in the light of the surrounding circumstances the survey was made to stop at seven hundred and fifty varas The fact that the survey thus established had been patented to another party does not disprove the identity
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page iii |Appendix
Where the charge of the court as to the law governing the case was erroneous the judgment will be reversed Where it is objected that a witness whose depositions are offered is not shown to be out of the county at the time of trial the objection should be sustained unless oath be made as required by the statute (Pas Dig Art 3726 note 845) Where the commissioner of the general land office testifies as to records in his office it is a good objection that the records are not produced They are higher evidence than the commissioners conclusions as to their contents (Pas Dig Art 3715 note 839) The object of the verdict of a jury is to respond to the issues made in the pleadings and supported by the evidence The judgment must be a conclusion of law from the facts found and all must be so certain that the ministerial officers may execute the judgment without further directions (20 Tex 442 471 22 Tex 173 25 Tex 173) Where the issue was as to the conflict of surveys the verdict should find what the actual conflict is and the judgment should rest upon the verdict and not upon a survey made upon a former trial If a defendant proves three years continuous possession before the institution of the suit claiming under a location and survey under a valid certificate (with a title derived from the grantor) he is entitled to the benefit of the 15th section (three years) of the statute of limitation (Pas Dig Art 4622 note 1031) [1] Appeal from Cherokee The case was tried before Hon Reuben A Reeves one of the district judges This action of trespass to try title was instituted by appellee the 11th of September 1858 alleging the appellee to be the owner of a tract of six hundred and forty acres of land which is alleged to commence three thousand one hundred and sixty varas east of the southeast corner of the John R Taylor survey of a half league thence north four hundred and eleven varas to corner thence east one thousand nine hundred and eight-tenths varas thence south one thousand nine hundred and eight-tenths varas thence west one thousand nine hundred and eight-tenths varas thence north one thousand four hundred and eighty-nine and eight-tenths varas to the place of beginning which is alleged to include the residence and improved land of appellant Plaintiff set out his title and averred that in 1838 a certificate 260 for six hundred and forty acres of land was issued to Mobly Rhone which was approved as genuine etc That this certificate was filed on the land described in the petition and that a patent duly issued to the land on the 31st day of July 1845 He also alleged that in 1852 [2] he sued appellant for the same land which suit was decided against him and that this was the second suit allowed under the statute (Pas Dig Art 5298) No survey of the land was averred nor was there any proof that a file was ever made on the land In an amended petition it was averred that in 1839 the John H Irby or John R Taylor surveys were well known and that from that time the land claimed by appellee had been well known as the Mobly Rhone survey and was known to the appellant and those under whom she claimed at the time of the accrual of their rights that it was precisely similar in size and shape to a survey made for Reason Franklin lying adjacent to it that the beginning-point of the Rhone and Franklin surveys is the same for calls that the surveys are identical in the calls for course and distance except that the Franklin survey calls to begin nearer to the John R Taylor survey and it was averred that the land granted to Rhone lies entirely east of the Franklin survey that there the marks natural and artificial as described in the patent to Rhone cannot be found on the ground where it was alleged the land lies It was averred that the mistake was [3] caused by the accident carelessness or inattention or conjecture of the surveyor and the field-notes of a survey made by A J Coupland under order of the court during the pendency of the former
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page iv |Appendix
suit between these parties were made a part of the petition and it was averred that they correctly described the land patented to said Rhone Appellant answered excepted to appellees petition because the land was not described with sufficient certainty etc and because appellee derived his title from the government 261 but did not aver that any survey of the land was made and no sufficient description of the land was given For answer appellee plead not guilty etc and limitation of three and five years alleged that no survey in fact was ever made covering or embracing the land in controversy and averring that the land described in the patent to Mobly Rhone was entirely away from and off the land in controversy which was occupied by appellant Appellant also plead occupation and improvement made in good faith etc On the trial the plaintiff below read in evidence the patent to Mobly Rhone which was objected to because it was variant from the land and patent [4] described in the petition there was a deed from Rhone to himself an agreed statement signed by the attorneys admitting as genuine the certificate to Mobly Rhone also that the certificate to John H Power under which appellant claimed was genuine and that said certificate was transferred by Power to Tubb in 1847 and by Tubb to Pearson in 1848 and by Pearson to Gray and wife in 1849 and by Gray and wife to appellant in 1851 that said transfers had been regularly recorded etc E G Armstrong a witness for appellee said that in October 1857 by order of the district court of Cherokee county he made a survey of the land in controversy which was given in the record that in making the survey he went to the southeast corner of the John H Irby or John R Taylor survey and ran a line from thence east three thousand one hundred and sixty varas he set a stake for the beginning-point and from thence ran the courses and distances as called for by the patent that the survey so made did include the residence and improved land claimed by appellant that he made diligent search at the place fixed upon for the beginning for marked lines etc and made search at all the corners [5] and along the lines of the 262 survey made by him for corners and marked lines but could find no old lines that from his examination he was satisfied that no corner-trees or lines had ever been marked there that to commence at the southeast corner of the John H Irby or John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the courses and distances called for in the patent would include the land claimed and occupied by the defendant That on the 3d day of November 1855 he made a survey commencing at the southeast corner of the John R Taylor survey and running east seven hundred and fifty varas he found marked lines and running north four hundred and eleven varas found a marked tree and corner as called for in the patent to Rhone and from thence running the course and distance called for in the patent he found marked line trees and corners Camp and Mud creeks as called for in the patent Witness said that the survey as made by him on the ground agrees with the calls of the patent as well as any survey he has ever made The file made by P H Tubb on the 14th of April 1848 under which appellant [6] claimed the land the survey made for Mrs Gray which covered the file or nearly so were also in the record Armstrong said the house occupied by Mrs Stafford the appellant was a few varas west of the survey made for Mrs Gray under and by virtue of the Power certificate That to commence at the southeast corner of the John R Taylor survey and run east three thousand one hundred and sixty varas for a beginning-point and then running the course and distances called for in the patent to Mobly Rhone would include the premises and land claimed by appellant That a survey so made would agree with the patent in the calls for course and distance but all the other calls of the patent would be in conflict with a survey so made That in running the east line of said survey made by him under the order of the court he crossed a
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page v |Appendix
263 lake thirty varas wide That it was such an object as would likely be stated in the field-notes of a survey as a matter of description It was admitted by the plaintiff that no survey in fact was ever made by virtue of the certificate to Mobly Rhone upon which the patent issued covering or embracing the land in controversy and which was occupied by [7] the defendant But it was contended by plaintiff that the patent operated to convey the land to the grantee without an actual survey being made When the deposition of James M Trimble was offered the defendant objected to reading the deposition in evidence unless oath were made that Trimble was not in the county The objection was overruled and the deposition was read S Crosby said that he was a clerk in the land office from 1845 to 1852 and commissioner of that office from 1852 to 1858 that he had been familiar with the maps and surveys in the general land office since 1845 that the Mobly Rhone and Reason Franklin surveys were in the office that as represented on the map the Rhone survey lies east of the Franklin survey When the survey made for M D Vaughan came up for examination it was said to be in conflict with the Rhone survey and in June 1851 a transcript of the field-notes of the Rhone and Franklin surveys was filed in the office by Carter the assignee of the M D Vaughan certificate that the Rhone and Franklin surveys both called for the same land and on this and the testimony of Trimble and Coupland that there was no evidence of a survey to be found [8] commencing three thousand one hundred and sixty varas east of the John R Taylor survey the Rhone survey was considered to be removed so as not to conflict with the Vaughan and Gray surveys and the patent was issued to Carter as assignee of Vaughan etc Irby a witness for appellee testified that he was present at the time the line was run from the John R Taylor to 264 the Reason Franklin survey that the line was run in the evening and the next day the party were surveying about the same place He proved the declarations of a party claiming to be M Rhone and also proved the declarations of persons in the vicinity of the land as to where it was said to be located Witness knew Camp creek since the date of the survey in 1839 it had been well known since that time it runs through or across the Franklin survey It would not touch at any point a survey of six hundred and forty acres commencing three thousand one hundred and sixty varas east of the John R Taylor survey above mentioned and from thence running as called for in the patent to Rhone nor would a survey so made be nearer than one-half mile of Camp creek Armstrong and Coupland who had been on the land and [9] made surveys under order of the court agreed with Irby that a survey commencing and running the course and distance as called for in the patent to Rhone would not come nearer than a half mile of Camp creek Irby further stated that Tubb under whom appellant claimed the land settled upon it in 1847 and that it had been occupied continually since that time by persons who claim under and through Tubb A regular chain of title and occupation was shown from Tubb to appellant Myers proved that the patents to Rhone and Franklin were precisely the same except that it was seven hundred and fifty varas from the John R Taylor survey to the beginning of the Reason Franklin survey and three thousand one hundred and sixty varas from the Taylor to the beginning of the Rhone survey--the place assumed as the beginning no survey having been made The appellant read in evidence the certificate to John H Power and the field-notes of the survey made by virtue of the Power certificate It was in proof that the patent to Carter assignee of the M D Vaughan certificate conflicted 265 about eighty acres with the land claimed by appellee and the house and a small portion of land claimed [10] and occupied by appellant was on the grant to Carter All the other improvements were on the Power survey or the land surveyed by virtue of the Power certificate
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page vi |Appendix
Vansickle said there might be a mistake as to the beginning of the survey of Mobly Rhone If this were admitted or established the difficulty in regard to the survey would be removed As the survey is and the field-notes as in the patent appear there is no conflict with the survey as found on the ground marked lines corners and creeks except in the distance from the southeast corner of the John R Taylor survey to the point designated as the beginning of the Rhone survey there is no discrepancy All the other calls in the patent to Rhone were found on the ground as described in the patent to Rhone but it removed the survey entirely off the land occupied and claimed by the appellant he made the survey the lines of the survey and corner trees were plainly marked The deposition of A A Nelson proved that he was surveyor of the Nacogdoches land district from the year 1840 to 1856 that Cherokee was taken from the Nacogdoches land district in 1848 that the survey of Rhone was not designated on the map which [11] was made in 1846 The judge charged the jury that when a survey calls to begin so many varas from a certain corner of an older survey which is established the beginning-point may be ascertained by running according to the calls in the patent If there is no actual survey there must be such a description on the face of the patent as would lead to and identify the place designated and such as would enable subsequent locators to appropriate the adjacent lands that if Irby or John R Taylors corner had been identified and Rhones beginning-corner was shown to be three thousand one hundred and sixty varas from the Taylor survey the remaining calls 266 of the patent for the natural objects if found on the ground would control if there were no marked lines or if they were inconsistent with the natural objects on the ground as called for in the patent then the calls for course and distance as given must fix the boundaries of the Rhone patent There were motions for new trial and in arrest of judgment A new trial was asked on the ground that the court erred in the various rulings upon the admission of the testimony and in the charge to the jury and in refusing to give [12] the charges asked by appellant and because the verdict was against law and evidence and because the verdict was not responsive to the issues and did not find for the plaintiff the land sued for Motion in arrest of judgment because the verdict did not ascertain and find on the matter in issue between the parties and did not find for the plaintiff the land described in the petition and did find for the plaintiff the land in the patent when no patent was averred by the plaintiff and three patents were referred to in the evidence The verdict was We the jury find for the plaintiff all the land embraced within the bounds as claimed by the patent It was assigned for error that the court erred in overruling the defendants exception to the petition and the other rulings of the court DISPOSITION Reversed and remanded COUNSEL Donley amp Anderson for appellant argued against the form of the petition The question arises whether a patent is sufficient to appropriate the land when there has been no survey of the land
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page vii |Appendix
We concede that a patent to land is prima facie evidence that all the preliminary steps have been taken to 267 justify its issuance and raises the presumption that [13] all the legal requisites to the issuing of the patent have been complied with It has however been held by this court that the issuing of a patent is a ministerial act and must be performed according to law If issued against law it is void and those claiming under it acquire no right (State v Delesdenier 7 Tex 76) The principle announced in this case has been sustained in numerous cases adjudicated by other courts (Hunderkoffer v Burns 1 Wash C C 109 Stoddard v Chambers 2 How 284) [They reviewed the Texas legislation showing the steps by which lands are located surveyed and patented] No authority has been cited that a patent without a previous survey has been issued unless it was represented that a survey in fact had been made [They cited Winter v Jones 10 Ga 190 Lessee of Hunderkoffer v Burns 1 Wash C C 109 Lessee of DuBoise v Newman et al 4 Wash C C 74 Lessee of Griffin v Bradshaw 4 Wash C C 171 Hamilton v Wills cited in a note to Witherenton v McDonald 1 Hen amp M 307) The facts in relation to the calls and lines were reviewed Anderson v Stamps 19 Tex 464 Urquhart v Burleson 6 Tex 502 Hubert v Bartlett 9 Tex [14] 97 George v Thomas 16 Tex 74 Boulton v Lann 16 Tex 96 Henry v Henry 5 Barr 249 Kelly v Graham 9 Watts 116] It is assigned for error that the court erred in rendering judgment on the verdict of the jury in this cause and in refusing to arrest the judgment herein etc The jury find for the plaintiff all the land embraced within the bounds as claimed by the patent etc As there are conflicting calls in this patent the verdict in fact determines nothing If the patent to Mobly Rhone is referred to what are 268 the bounds of the land ascertained by the patent the courses and distance or the marked lines and natural boundaries We shall not go again into this matter We refer to the authorities hereinbefore cited on this question We believe that they are conclusive of the question that the marked lines and natural boundaries shall govern We cannot add to those authorities by argument On the question of the sufficiency of the verdict it is said in Young v Wickliffe 7 Dana 447 this is not responsive to the issue and did not authorize the judgment In Russell v Cornwell 2 Root 68 2 U S Dig 463 it is said a judgment will [15] be arrested where the issue put is not answered directly by the verdict and judgment In Kurle amp Walker v Shrive 11 Gill amp J 405 it is held that a verdict which omits to find a material issue joined in the cause may be made the subject of a motion in arrest In Crommitten v Minter et al 9 Ala 595 the verdict was We the jury do find in favor of the said plaintiffs and we find the right and title to said land in the plaintiffs declaration mentioned to wit fifty acres of the southeast fractional quarter of fractional section twenty-four in township eighteen in range eighteen in the district of lands subject to sale in Cahaba Alabama to be in said plaintiffs etc It is said that this verdict would have been sufficient if it had not affirmed
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page viii |Appendix
that the plaintiffs had title to so much of the land leaving it to be inferred that the title to the residue was in some one else (Jenkins v Noel 3 Stew 60 Brown v Hilligas 2 Hill 447 Patterson v The United States 2 Wheat 221) J F Wood for appellee I Can the plaintiff recover under his patent by establishing the beginning-point without an actual survey upon the ground II Are the rights of [16] the plaintiff below (defendant 269 here) affected by prescription or the statute of limitation and to what extent if affected As to the second point the statute of limitation there can be but little difficulty Mrs Stafford lives on the Vaughan survey about eighty acres of which conflicts with the Rhone survey And although it is shown that by the proof she and those under whom she claims had lived there since about 1847 yet the deed or patent to the Vaughan survey is 5th June 1851 less than a year prior to the commencement of the action which was on 13th April 1852 The statute could not begin to run until some claim by boundaries was set up so that as to the survey the statute does not run And as to the Powers survey under which appellant also claims about eighty acres the proof shows the file in that case to have been made 14th April 1848 and the survey in November 1850 and a very material question here arises as to the time at which the statute should begin to run whether at the date of the file or at the date of the survey M Priest also filed a long and able argument for appellee JUDGE Smith J It [17] It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract and to extend a correct description of these objects (natural and artificial with courses and distances) into the field-notes of the survey in order that they may be inserted in the patent which will afford the owner as well as other persons the means of identifying the land that was in fact located and surveyed for the owner (21 Tex 20) and until the reverse is proved it will be presumed that the land was thus surveyed and boundaries plainly marked and defined And if any object of a perishable [270] nature called for in the patent be not found the presumption will be indulged that it is destroyed or defaced but if it be established by undoubted evidence that the land was not in fact surveyed yet as the omission was the fault of the government officer and not the owner it would seem extremely unjust to deprive him of the land by holding the patent to be void if the land can by any reasonable evidence be identified [18] And if course and distance alone from a defined beginning-point will with reasonable certainty locate and identify the land that will be held sufficient (Newsom v Pryorrsquos Lessee 20 US 7 7 Wheat 7 16 Tex 440 5 Mon 159) Then we must conclude that the position of the appellant that a patent without a survey having been made of the land should be held void cannot be sustained The main point in this case appears to be whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below As has been intimated it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain (21 Tex 21 9 Tex 103) And hence the directions given by law to run round the land--in fact point out and define upon it such natural objects or plain artificial marks with courses and distances by which the land can at all times be easily found and identified Natural objects are mountains lakes rivers
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page ix |Appendix
creeks rocks and the like Artificial objects are marked lines trees stakes etc A description [19] of these objects and marks of identity should be faithfully transferred into the field notes and thence into the patent to serve the purpose aforesaid and in all future controversies in respect to the locus or boundaries of the tract recourse must be had to these calls and when they are all found and established in conformity with those set forth in the patent the conclusion is almost irresistible that the [271] tract of land covered by the patent is identified and there can be little or no room for controversy about the boundaries of the land but when all the calls of the patent cannot be found or if found to be inconsistent with others in whole or part and leading to a different result or confusion then it becomes important to look to the rules of law that must govern the action of the court and jury in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey It has been often said by this court that the general rules are that the location should be governed first by natural objects or boundaries such as rivers lakes creeks etc second artificial marks such as marked [20] trees lines stakes etc and third course and distance The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case And when they lead to contrary results or confusion that rule must be adopted which is most consistent with the intention apparent upon the face of the patent read in the light of the surrounding facts and circumstances The rule stated by Chief Justice Marshall in Newsom v Pryor 7 Wheat 7 is that the most material and most certain calls shall control those which are less material and less certain A call for a natural object as a river a known stream a spring or even a marked tree shall control both course and distance (6 Tex 502 16 Tex 110 9 Tex 103 22 Tex 594) Of all these indicia of the locality of the true line as run by the surveyor course and distance are regarded as the most unreliable and generally distance more than course for the reason that chain-carriers may miscount and report distances inaccurately by mistake or design At any rate they are more liable to err than the compass The surveyor [21] may fall into an error in making out the field-notes both [272] as to course and distance (the former no more than the latter) and the commissioner of the general land office may fall into a like error by omitting lines and calls and mistaking and inserting south for north east for west And this is the work of the officers themselves over whom the locator has no control But when the surveyor points out to the owner rivers lakes creeks marked trees and lines on the land for the lines and corners of his land he has the right to rely upon them as the best evidence of his true boundaries for they are not liable to change and the fluctuations of time to accident or mistake like calls for course and distance and hence the rule that when course and distance or either of them conflict with natural or artificial objects called for they must yield to such objects as being more certain and reliable There is an intrinsic justice and propriety in this rule for the reason that the applicant for land however unlearned he may be needs no scientific education to identify and settle upon his land when the surveyor who is the agent of the government authoritatively announces to him that certain well-known rivers lakes creeks springs marked corners and lines constitute the boundaries of his land But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct and with the aid of the best scientific skill mistakes and errors are often committed in respect to the calls for course and distance in the patent The unskilled are unable to detect them and the learned surveyor often much confused Although course and distance under certain circumstances may become more important than even natural objects-as when from the face of the patent the natural calls are inserted by
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page x |Appendix
mistake or may be referred to by conjecture and without regard to precision as in the case of descriptive calls-still they are looked upon and generally regarded as mere pointers or guides that will lead to the 273 true lines and corners of the tract as in fact surveyed at first The identification of the actual survey as made by the surveyor is the desideratum of all these rules The footsteps of the surveyor must be followed and the above rules are found to afford the best and most unerring guides to enable one to do so There is another rule to be observed in estimating these natural and artificial calls They are divided into tow classes descriptive or directory and special locative calls The former though consisting of rivers lakes and creeks must yield to the special locative calls for the reason that the latter consisting of the particular objects upon the lines or corners of the land are intended to indicate the precise boundary of the land about which the locator and surveyor should be and are presumed to be very particular while the former are called for without any care for exactness and merely intended to point out or lead a person into the region or neighborhood of the tract surveyed (9 Yer 55) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls and must give way to them In this case the southeast corner of the John R Taylor survey appears to have been notorious in the neighborhood and well established The line calling to run east three thousand one hundred and sixty varas to the beginning corner of the Mobly Rhone survey of six hundred and forty acres when extended that distance is unsupported by any natural or artificial call mentioned in the patent or proved to have been made by the surveyor When that line was run out by Armstrong the distance and course called for thence around the tract the courses and distances called for in the patent for the four corners and lines of the tract not one single natural or artificial object called for in the patent could be found upon the ground at 274 all corresponding with it as described in the patent But it is contended by the appellee that no survey was in fact made by the surveyor and that the tract was surveyed by protraction beginning at the Taylor southeast corner To support the truth of this supposition it must be admitted that the surveyor did not perform his duty that the locative calls of the patent were never in fact made or found and were falsely placed in the patent by the surveyor or that they have since the designation of them been destroyed or defaced and cannot now be found while it must be admitted that Mud creek and Camp creek called for in the patent are not liable to destruction if it be admitted that all the marked trees may have been destroyed or defaced by accident or design There is no evidence adduced except the admission of the plaintiff himself that the survey was not in fact made or that it was made by protraction while on the contrary it has been most satisfactorily proved that if the line east from Taylorrsquos corner be stopped at seven hundred and fifty varas from that point thence following the courses and distances called for we find every call of the patent on the ground natural and artificial Mud and Camp creeks are crossed each twice and a spring reached at the very points called for in the patent the corner and bearing ndashtrees also corresponding with the patent fortified by course and distance It is true no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey Some evidence tended to show it was surveyed for Reason Franklin It may have been surveyed at the time for Franklin but like the Irby survey which was transferred to Taylor this may have been applied to the Mobly Rhone claim The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey and that there was a mistake in the length of the descriptive call of three thousand 275 one hundred and sixty varas and that its true length is seven hundred and fifty varas The distance of this line is the least important or material of all the calls in the patent It is directory or descriptive in its character and forms no part of the boundary of the survey and evidently was intended only to
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xi |Appendix
point and direct a person to the neighborhood in which the special locative calls could be found and about its accuracy the parties may not have been very particular And in this view we are of opinion this call should yield to the more specific calls found on the ground It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas we do not find one solitary other call of the patent on the ground and we are asked to presume that the report of the calls in the patent were false and that no survey was in fact ever made on the land while on the other hand if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance and that its true length is only sever hundred and fifty then we find every corner bearing tree line and the two creeks called for all corresponding with the calls in the patent in respect to identity and course and distance and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas and force it to yield to the more material and locative calls of the patent found upon the ground It is said that this same tract was surveyed for and patented to Franklin This we conceive can be of but little importance in fixing upon the boundaries of the Rhone survey If it amounts to anything it only proves that two patents have been issued for the same tract of land which by the by has been very often done but not often perhaps with lines corresponding so literally But we do not think that at all affects the question of boundary involved in this case Because Mobly Rhone has secured a patent upon Franklinrsquos land we cannot see how that can furnish any 276 reason why he should take that of any other person in its stead The line from Taylorrsquos southwest corner we regard as a descriptive or directory call and if found to be in conflict with any of the locative calls found and identified upon the ground then it must yield to them as being more material and important We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey and that it erred in refusing the charge asked by the defendant in that respect and should have granted the defendant a new trial on her motion The objection to reading the deposition of Trimble for want of an affidavit that he was out of the limits of the county was improperly overruled O amp W Dig Art 464 9 Tex 339 12 Tex 11 The exceptions to the deposition of Crosby in respect to the contents of records and papers in his office should have been sustained Copies were better evidence of these facts 22 Tex 293 The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced and to declare the respective rights of the parties as involved in the issue with certainty so that the judgment can be entered with like certainty and the ministerial officers can carry it into execution without determining additional facts 20 Tex 442 22 Tex 173 The issue here was not whether the plaintiff owned the land claimed in the petition The defendant did not deny such claim but contended that the patent of the plaintiff did not embrace the land they claimed and that it was located elsewhere and the issue was whether the land claimed under the Rhone patent conflicted with that 277) claimed by the defendant To this issue it seems the jury did not respond with that certainty required by law The verdict responded to the evidence adduced (the patent) but not to the issue which the patent was introduced to support The judgment is equally liable to objection Instead of declaring the legal sequence of the verdict and the issues it establishes the judgment established and ratified the correctness of a
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xii |Appendix
survey made by A J Coupland in 1852 by order of the district court in a former suit which survey constituted no part of the pleadings or verdict It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffsrsquo land really conflicts with that of the defendant and to what extent If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit under the location and survey of the Power certificate it is not seen why the defense of three yearsrsquo limitation failed her But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey As this case will go back for a new trial and these doubts may be removed therefore we will not now further discuss it There being error in the proceeding therefore the judgment below is reversed and the cause remanded for a new trial in conformity with this opinion
REVERSED AND REMANDED
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xiii |Appendix
Map prepared from GLO files not exhibit in law case
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xiv |Appendix
++++++ CASE 2 ++++++
539 So2d 1147 (1989) Harold J RIVERS and Mary E Rivers AppellantsCross-Appellees
v Raymond S LOZEAU and Joy Elaine Lozeau His Wife AppelleesCross-
Appellants District Court of Appeal of Florida Fifth District
February 23 1989 Rehearing Denied March 23 1989
11481148 Bryce W Ackerman of Savage Krim Simons Fuller amp Ackerman PA Ocala for appellantscross-appellees
H Randolph Klein of Klein amp Klein Ocala for appelleescross-appellants
11491149 COWART Judge
This is a land boundary line dispute case
THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 14 of the Southwest 14 of Section 15 Township 14 South Range 24 East in Marion County Florida In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question The US Forestry Service owns the land to the north At that time the Rizzos retained a surveyor Moorhead Engineering to survey their land and to establish certain internal land lines dividing it into parts Moorhead undertook to locate and monument Rizzos external boundary lines and corners and to establish and monument the terminal points of certain internal division lines
In 1969 the Rizzos conveyed to Marcus E Brown and wife by deed containing the following land description
The North 40000 feet of SE 14 of SW 14 of Section 15 Township 14 South Range 24 East Marion County Florida
The west north and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos The south line of the Brown parcel did not follow any internal line established by the Moorhead survey Mr Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown Later in 1977 or 1978 Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr Rizzo and placed a metal rod at the point Mr Rizzo had told him was his south boundary line Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S Lozeau and his wife
In 1975 the Rizzos conveyed a parcel of their remaining land to Paul W Adams and wife which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xv |Appendix
thence N 89 5301 E along a line 40000 feet south of and parallel to the North line of said SE 14 of SW 14 a distance of 132704 feet to a point on the East line of said SE 14 of SW 14
Using substantially the same land description the Adamses conveyed to Daniel E Reader and wife who conveyed to appellants Harold J Rivers and wife
In 1982 the US Bureau of Land Management did a dependent resurvey of the lands of the US Forestry Service which retraced the lines of the original government survey and identified restored and remonumented the original position of the corners of the original US government survey[1] This remonumenting of the original government survey along with a 1986 survey by Whit Holley Britt made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 2871 feet north of the true location of that line as it was originally established by the official US government survey and reestablished by the 1982 government dependent survey
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 2871 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the US government (and Britt) surveys The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the 11501150 location of the land subsequently conveyed by Rizzo notwithstanding that later surveys ie the government survey of 1982 and the 1986 Britt survey may show the Moorhead monuments to have been in error[2] After a non-jury trial the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants The Riverses appeal and the Lozeaus cross-appeal
LAND DESCRIPTIONS Since time immemorial parcels of land have been identified and described by reference to a series of lines or calls or courses that connect to completely encircle the perimeter or boundaries of a particular parcel A particular property description may consist entirely of descriptions of original lines that compose it or it may in whole or in part refer to other sources which themselves show or describe previously surveyed and existing lines or calls An individual line or call in a property description usually but not always[3] refers to an imaginary straight line customarily described in several ways (1) by reference to its length (2) by reference to its terminal points (commonly called corners or angles) (3) by reference to its angle with regard to true north magnetic north or to one or more other lines A property description composed of descriptions of its constituent boundary lines or calls is known as a metes and bounds description Of the ways that boundary lines are described the reference to terminal points is the strongest and controls when inconsistent with other references[4] In effect real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines A property description that refers to and adopts by reference the description of a boundary line is DEPENDENT upon the proper location of the adopted line which is dependent upon the location of the terminal points of the adopted line which are dependent on their location on the ground as established by the original surveyor creating that adopted line
LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions the only professional authorized to locate land lines on the ground is a registered land surveyor[5] In fact the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor However in the absence of statute a surveyor is not an official and has no authority to establish boundaries like an
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xvi |Appendix
attorney speaking on a legal question he can only state or express his professional opinion as to surveying questions In working for a client a surveyor basically performs two distinctly different roles or functions
First the surveyor can in the first instance lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel In performing this function he is known as the original surveyor and when his survey results in a property description used by the owner to transfer 11511151 title to property[6] that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and more importantly control over all subsequent surveys attempting to locate the same line
Second a surveyor can be retained to locate on the ground a boundary line which has theretofore been established When he does this he traces the footsteps of the original surveyor in locating existing boundaries Correctly stated this is a retracement survey not a resurvey and in performing this function the second and each succeeding surveyor is a following or tracing surveyor and his sole duty function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey he cannot establish a new corner or new line terminal point nor may he correct errors of the original surveyor He must only track the footsteps of the original surveyor The following surveyor rather than being the creator of the boundary line is only its discoverer and is only that when he correctly locates it[7]
ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed it is often stated that the courts seek to effectuate the intent of the parties This is not an accurate notion The intent of the parties to a contract for the sale and purchase of land both the buyer and the seller may be relevant to a dispute concerning that contract but in a real sense the grantee in a deed is not a party to the deed he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters The owner of a parcel of land being the grantee under a patent or deed or devisee under a will or the heir of a prior owner has no authority or power to establish the boundaries of the land he owns he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing In short an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line that is being established and that line becomes an authentic original line only when the owner makes a conveyance based on a description of the surveyed line[8] and has good legal title to the land described in his conveyance
UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb 22 1819 and ratified Feb 22 1821 and as original governmental owner caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress The permanent seat of government having been established at Tallahassee an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude[9] North-south range lines six miles apart and parallel to the Tallahassee Principal Meridian were run throughout the state except where impracticable because of navigable waters etc Likewise East-West township lines six miles apart and parallel to the base line were also run throughout the state to form normal townships six 11521152 miles square each of which were divided into thirty-six square sections one mile long on each side containing as nearly as may be 640 acres each These sections were numbered respectively beginning with the number one in the northeast corner and proceeding west (left) and east (right) alternately through the townships
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xvii |Appendix
with progressive numbers Sections were divided into squares of quarter sections containing 160 acres The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners and midway between them Although theoretically conceived and invisible these lines are not merely theoretical concepts but are real lines actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections townships and ranges
THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzos subdivision Moorhead acted as an original surveyor but in attempting to locate and monument Rizzos external boundary lines which are described by reference to the federal rectangle system of surveying Moorhead was a following surveyor and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line the Moorhead surveyor placed monuments 2871 feet north of the true north line of this quarter-quarter section From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown and subsequent deeds the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors This is true regardless of the fact that Mr Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors[10] and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone including a particular surveyor might erroneously believe the correct location of the true boundary line to be In 1975 the Rizzos conveyed to appellant Rivers predecessor in title property the northern boundary 11531153 of which is defined as being 400 feet south of and parallel to the north line of this quarter-quarter section Regardless of any assertion that this conveyance was made relying on the Moorhead survey the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor On the contrary that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus predecessor in title (which it does not) it is quite immaterial because at the time of the conveyance to Paul W Adams Mr and Mrs Rizzo did not own that south 28 feet they having previously conveyed legal title to it to Marcus Brown Lozeaus predecessor in title All else argued in this case is immaterial The Lozeaus are entitled to prevail in this controversy All legal theories that could change the result in this case such as those relating to adverse possession title by acquiescence estoppel lack of legal title etc were neither asserted nor argued nor material in this case This case is reversed and remanded with instructions that the trial court enter a judgment in favor of the appellees Raymond S Lozeau and wife in accordance with the land description as controlled by the official US government survey
REVERSED and REMANDED
COBB J and GLICKSTEIN HS Associate Judge concur
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xviii |Appendix
[1] This is only a re-establishment of the true position of the original survey by retracement Clark on Surveying and Boundaries sect 650 Dependent surveys page 956 (Grimes 4th Ed 1976)
[2] See Akin v Godwin 49 So2d 604 (Fla 1950) Willis v Campbell 500 So2d 300 (Fla 1st DCA 1986) Zwakhals v Senft 206 So2d 62 (Fla 4th DCA 1968) City of Pompano Beach v Beatty 177 So2d 261 (Fla 2d DCA 1965) and Froscher v Fuchs 130 So2d 300 (Fla 3d DCA 1961)
[3] Property descriptions sometimes refer to irregular natural lines capable of identification such as the banks shores and high and low marks of bodies of water such as oceans lakes rivers and streams and to the midtread of streams the face of cliffs the ridge of mountains etc
[4] In a similar manner when there is an inconsistency between the description of a corner (a line terminal point) in field notes and plats subsequently made and recorded and the original monument evidencing that corner on the ground the original monument on the ground controls See Tyson v Edwards 433 So2d 549 (Fla 5th DCA 1983) rev denied 441 So2d 633 (Fla 1983)
[5] See sect 472005(3) Fla Stat
[6] This is a most important qualification
[7] See Clark on Surveying and Boundaries Chap 14 Tracking a Survey pg 339 and generally (Grimes 4th Ed 1976)
[8] Neither the 1969 deed from the Rizzos to Marcus Brown nor the 1975 deed from the Rizzos to Paul W Adams contains property descriptions of lines bounded by monuments set by surveyor Moorhead in 1964 This would be an entirely different case if the land descriptions in question described lines commencing at (or running to) a concrete monument set in 1964 by surveyor Moorehead etc
[9] See sect 25808 Fla Stat and Fla StatAnnot Vol 1 page 119 (West 1961) Unfortunately this helpful material has been omitted from the 1988 edition of this volume of FSA
[10] Notwithstanding that Rizzo and Brown both may have subjectively believed or intended Rizzos deed to Brown to convey the land between the erroneous Moorhead monuments because the deed described land by reference to the US government survey it conveyed the legal title to the north 400 feet of this quarter-quarter section as measured from the true location of the original government survey To the extent that Rizzos deed conveyed legal title to land Rizzo did not intend to convey Rizzos remedy would have been to have brought a reformation suit in equity to have his deed reformed to describe the correct parcel by a correct description Of course the resulting litigation can be easily visualized Rizzo would claim that he and his grantee Marcus Brown intended Rizzos deed to convey land only south to a point 33 feet north of one of Moorheads monuments and his deed should be reformed accordingly Brown would admit that was true but would then claim that the parties also obviously intended that Brown was to obtain property 400 feet wide from north to south and that Brown should either keep the 400 feet described in the deed or be entitled to obtain money damages from Rizzo or to rescind the transaction because of Rizzos misrepresentation that he owned to the erroneous Moorhead monument located 2871 feet north of Rizzos true line and Rizzo did not own that northern 2871 feet These contentions which never matured existed only between the original parties and do not inure to any subsequent good faith purchasers who took legal title to their parcels according to the land descriptions contained therein and the equitable and legal rights between Rizzo and Brown being personal to them are immaterial in litigation between subsequent owners
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xix |Appendix
++++++ CASE 3 ++++++
361 FSupp 481 (1973) UNITED STATES of America Plaintiff
v CHAMPION PAPERS INC Defendant
Civ A No 69-H-896 United States District Court S D Texas Houston Division
May 17 1973
482482 Anthony J P Farris U S Atty Winston P Crowder Asst U S Atty Houston Tex for plaintiff
Philip J John Jr Baker amp Botts Houston Tex for defendant
MEMORANDUM AND ORDER
CARL O BUE Jr District Judge
In this action which was tried to the Court the plaintiff seeks to resolve a boundary dispute between the United States Forest Service and defendant Champion Papers Inc Jurisdiction is invoked under 28 USC sect 1345
The land which is the subject of the controversy is located in San Jacinto County Texas In 1938 the Government purchased most of the land comprising the Pleasant B Riggs survey from Gibbs Brothers and Company This land is a part of the Sam Houston National Forest located in Texas In 1947 the defendant Champion Papers Company purchased the adjoining surveys of land These surveys adjoin the southeast and southwest boundaries of the Riggs survey and are known as Washington County Railroad Company surveys No 1 No 2 and No 5 The Riggs survey approximates a square measuring about two miles in length on each side It is laid out so that the corners are located at approximately true north south east and west The property in all of these surveys has been utilized as forest land with its timber being cut at various times Historically fences have rarely if ever been built in the area of dispute 483483 However defendant has recently constructed a fence which follows its claimed boundaries in the disputed area
The Riggs survey was originally surveyed for the Republic of Texas by Job S Collard in February of 1838 The Washington County Railroad Company surveys were originally surveyed for the State of Texas by John Wade in 1861
While contested in some respects the following sketch most accurately depicts for illustrative purposes the general location of the Riggs survey in relation to the adjoining surveys
The land which is in dispute constitutes approximately 3285 acres The Government as owner of the Riggs survey claims its southeast boundary runs from monument J-226 to monument J-156 Defendant Champion Papers Inc as owner of Washington County Railroad Company surveys No 2 and No 5 484484 claims its northwest boundary runs from monument SJ-143 to monument SJ-145 and it has constructed a fence along such line The land in contention is illustrated on the accompanying diagram 485485 The 135 year old original field notes of the surveyor Job S Collard read as follows
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xx |Appendix
Survey for Pleasant B Riggs of sixteen Labors 782131 510 square varas of land situated in Montgomery Co west of the east forth of San Jacinto on Nebletts Cr being a part of the quantity of land to which he is entitled by virtue of a certificate No 98 issued by the board of land commissioners for the County of JeffersonmdashBeginning on the S West boundary of Andrew Briscoes survey 850 varas from the SSW corner of said survey set post from which a white oak 30 inches in diameter bears N 5deg E 8 610 varas dist and an ash 12 inches in diam bears S 85deg W 18 410 varas dist varas Thence S 44deg W 560 610 To Nebletts Creek 4 varas wide runs S 75deg E 4096 610 To 2d corner set post from which a pine 12 inches in diam bears S 89deg W 4 610 varas dist and a pine 36 inches in diam bears N 23deg W 6 410 varas dist Thence N 46deg W 4096 610 To 3d corner set post from which a sweet Gum 10 inches in diam bears N 22deg E 9 610 varas dist and a sweet Gum 8 inches in diam bears S 22deg W 9 610 varas dist Thence N 44deg E 470 To Nebletts Creek 3 varas wide runs S 75deg E 4056 Intersected said Briscoes survey set post from which a Spanish oak 10 inches in diam bears S 62deg W 5 410 varas dist and a Spanish oak 8 inches in diam bears S 38deg E 4 210 varas dist Thence S 46deg E with said survey 700 To Spring branch 2 varas wide runs N 45degE 4104 610 To the beginning
As can be seen from the claims of the parties and an examination of the diagrams the precise issue before the Court is the location of the southeast boundary of the Riggs survey which in turn is dependent upon the location of the south corner of the survey The problem is essentially one of retracing the footsteps of the original surveyor as he conducted the Riggs survey in 1838
The Government contends that the south corner of the Riggs survey is at the point monumented by monument J-226 which is located approximately 10098 varas southeast of defendants monument SJ-143 Reliance is placed upon a 1929 resurvey conducted at the behest of Gibbs Brothers and Company The proof adduced by the Government consisted essentially of (1) evidence with reference to the remains of certain bearing trees recited by surveyor Collard which consist of stump holes (2) evidence with reference to a passing call by Collard to Nebletts Creek (3) evidence with reference to a corner of an adjoining senior survey at which surveyor Collard began his survey (4) evidence with reference to an adjoining junior survey which consisted of a projection of a line the Bybee line from Little Caney Creek and (5) evidence with reference to various resurveys of the Riggs survey
Defendant concedes that (1) the stump holes are in the locations asserted by the Government which are in the relative positions that surveyor Collard called for bearing trees in his field notes (2) the distance from the eastern corner of the Riggs survey which is located by monument J-156 to Nebletts Creek in a southeastern direction more nearly corresponds to the distance called by surveyor Collard than the distance from the east corner of the Riggs survey as established by the 1912 resurvey of J W Oliphint and (3) a projection of the Bybee line in a northeastern direction would be close to monument J-226
Defendant however contends that the Government cannot establish by a preponderance of the evidence that the Collard survey established the southeast boundary of the Riggs survey to correspond to the line between J-226 and J-156 Defendant contends that the testimony has failed to locate any corner of the Riggs survey by original patent evidence and that the Bybee line is in conflict with the original patent notes of the Washington County Railroad Company surveys It is asserted that there is as much evidence to establish the south corner of the Riggs survey at SJ-99 as there is for establishing it at J-226 486486 In this regard it is strenuously urged that there is no substantial confirmable original patent evidence to be located at either monument It is also asserted that there is evidence which can support a finding of the south corner at SJ-143 As a result of the inability to find original patent evidence defendant contends that the course and distance from the stipulated west corner of the Riggs survey should control the establishment of the south corner
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxi |Appendix
The Court makes the following Findings of Fact and Conclusions of Law
FINDINGS OF FACT
I The East Corner of the Riggs Survey
1 Surveyor J S Collard commenced the 1838 survey on the east corner of the Riggs survey at a point 832frac12 varas from the southwest boundary of the Vital Flores or Briscoe survey This point is to the northwest of Nebletts Creek and was witnessed by an ash tree bearing S 85deg W 18 410 varas in distance and a white oak tree bearing N 5deg E 8 610 varas in distance
2 The ash and the white oak trees have since disappeared
3 A stump of an ash tree located in 1954 by surveyor Baldwin and in 1955 by the surveyor Morgan is the apparent sprout of the original ash tree marked by surveyor J S Collard
4 As a result of the soil composition in the area ash trees will not ordinarily grow any farther N 45deg W than 850 varas from the common corner of the Vital Flores survey and the Edward Russell survey
5 A white oak stump hole which is 8 610 varas from a point called for by surveyor J S Collard is actually the stump hole of the original bearing tree called for by this surveyor Surveyor Baldwin located both the white oak tree stump hole and the ash tree stump hole
6 US Forest Service monument J-156 marks the true location of the east corner of the Riggs survey as established by surveyor J S Collard
7 In 1838 Nebletts Creek crossed a line projected on a course S 44deg W from monument J-156 at a distance of 560 610 varas In 1967 this creek crosses a line projected on a course S 44deg W from monument J-156 at a distance of 507 varas As a result since 1838 the Creek has moved in an easterly direction leaving several old runs from a distance of 560 610 varas to its present course
8 The east corner of the Riggs survey cannot be located farther up the southwest boundary of the Vital Flores survey since any line projected from such a corner on a course S 44deg W would cross Nebletts Creek at a distance that could not reasonably comply with the distance called for by surveyor J S Collard
9 The defendant has presented no evidence locating the east corner of the Riggs survey
10 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-99
11 The defendant did not survey or report any findings along a line projected N 44deg E from its monument SJ-143 past the intersection of such line with a line projected N 45deg W from the boundary between Washington County Railroad Company survey Nos 5 and 6
II The South Corner of the Riggs Survey
1 Surveyor J S Collard located the south corner of the Riggs survey by marking two trees PR These trees included a 12 inch pine located 4 610 varas S 89deg W and a 36 inch pine located 6 410 varas N 23deg W from a post at the established corner
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxii |Appendix
2 Two stump holes with bearings and distance of S 89deg W 4 610 varas and N 23deg W 6 410 varas were located from the intersection of well-marked lines by surveyors J V Butler and J W Oliphint in 1929
3 At the intersection of the wellmarked lines there was one line running 487487 from the northeast on a course S 44deg W and continuing through such point
4 A second well-marked line was on a course running from the northwest S 46deg E However this line did not extend beyond the intersection
5 These stump holes are holes left by the trees marked PR by surveyor J S Collard in 1838 and called for by surveyor Wade in his field notes for the east corner of the Washington County Railroad Company survey No 1 in 1861
6 US Forest Service monument J-226 now marks the corner of the Riggs survey as first established by surveyor J S Collard These two stump holes are on a marked line the course of which is S 44deg W from US Forest Service monument J-156
7 There is no original patent field note evidence at defendants monuments SJ-143 or SJ-99
8 A projection of a line S 44deg W from US Forest Service monument J-226 intersects the Riggs survey at a point on the south bank of Little Caney Creek This point on the south bank of Little Caney Creek was originally located by surveyor Wade in 1861 and witnessed by a 12 inch pine marked X bearing S 6deg E 8 varas and a 12 inch pine marked X bearing N 3deg E 4 varas
9 The point on the south bank of Little Caney Creek was located in 1910 by surveyor Clinton Bybee as reflected in the field notes of his survey of the W H Rigell homeplace
10 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of San Jacinto County Texas on November 12 1909 in Cause No 1219 styled B H Bassett v W H Rigell as follows
At a stake for corner on the south bank of Little Caney Creek the same being the Southwest Corner of said Section No One Washington County Railroad Survey from which a large pine snag 38 in dia mkd X (old mark) brs N 42 E 30 ft and a Sweetgum 20 in dia mkd X brs S 42 E 11 ft in the north boundary line of R A Peebles Survey and also corner of Section No Two
11 The south corner of Washington County Railroad Company survey No 1 was established by the District Court of Montgomery County Texas on May 20 1932 in Cause No 17364 styled W H Rigell v Ed Mays as follows
At the most Southern Corner of Section No One Washington County Railroad Survey in San Jacinto County Texas a stake from which a sweet gum mkd x brs N 25 E 17frac12 vrs
12 The south corner of Washington County Railroad Company survey No 1 was located by surveyors J W Oliphint J V Butler and W T Robinson on April 30 1929 in their search for confirmative evidence of the south corner of the Riggs survey Similarly this corner was located by surveyor Morgan in 1967 as reflected in his field notes
13 The south corner of the Washington County Railroad Company survey No 1 is on an extension of a line from US Forest Service monument J-156 to J-226
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxiii |Appendix
14 Surveyor Wade intended the east corner of the Washington County Railroad Company survey No 1 to be common with the south corner of the Riggs survey
15 The east corner of the Washington County Railroad Company survey No 1 is common with the south corner of the Riggs survey and is presently marked or monumented by US Forest Service monument J-226
III The Southwest Boundary of the Riggs Survey
1 The southwest boundary of the Riggs survey runs from US Forest Service monument J-226 on a course N 46deg W to the west corner The latter corner is at a point of intersection with the northwest boundary of the survey This corner actually falls within the adjoining de la Garza survey which is senior to the Riggs survey
488488 2 A US Forest Service monument J-158 and a monument established by Foster Lumber Company mark the point of intersection of the southwest boundary of the Riggs survey with the de la Garza survey
3 A line southwest of and parallel to the southwest boundary of the Riggs survey was surveyed on the land of the Washington County Railroad Company the Eveline Woodford survey and the de la Garza survey by surveyor J W Oliphint in 1912 However the line surveyed by this surveyor does not extend to or intersect the southeast boundary of the Washington County Railroad Company survey No 1
4 Surveyor J W Oliphint was in error when he surveyed this line and established a corner for the Riggs survey some 101 varas northwest of the southeast boundary of Washington County Railroad Company survey No 1 This corner is also some 109 varas southwest of the southwest boundary of the Riggs survey
5 It appears that surveyor J W Oliphint corrected his original survey of 1912 This surveyor was a member of the survey crew of the 1929 Gibbs Brothers and Company survey when the stump holes fitting the description of the witness trees marked by surveyor J S Collard were found and a stake set for the corner This surveyor was also a member of the survey crew of the 1933 Gibbs Brothers and Company survey This survey set a stake for the south corner of the Riggs survey at the intersection of old marked lines adjacent to pine stump holes which fit the description of the patent field note trees The latter survey crew then further perpetuated the corner by marking other trees
IV The Northwest Boundary of the Riggs Survey
1 The northwest boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 44deg W from US Forest Service monument J-126 to J-158
V The Northeast Boundary of the Riggs Survey
1 The northeast boundary is well established by the US Forest Service and its location is not controverted by any evidence which was forthcoming at the trial of this cause
2 This boundary runs on a course S 46deg E from US Forest Service monument J-126 to US Forest Service monument J-156
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxiv |Appendix
VI The Riggs Survey In General
1 It appears clear that with reference to the land within the Riggs survey there have been no disputes between the grantors to the Government Gibbs Brothers and Company and the adjoining owners of the land within Washington County Railroad Company surveys Nos 1 and 5
2 It appears clear that there have been no disputes regarding the southeast boundary and the southwest boundary of the Riggs survey between the Government and adjoining survey owners until the defendant purchased the Washington County Railroad Company surveys from Ed Mays in 1948
3 The Government went into possession of the land within the Riggs survey on August 12 1939
4 Former adjoining survey owner Ed Mays recognized the boundaries monumented by the US Forest Service and in fact instructed his employee Ray Griffith not to cut timber across the then US Forest Service marked line
5 The primary use of the property in the Riggs survey has been to the boundaries marked by US Forest Service monuments J-156 and J-226
6 The distance along the various boundaries of the Riggs survey are found to be as follows Southeast boundary 41330 varas southwest boundary 42033 varas northwest 489489 boundary 40014 varas and northeast boundary 41621 varas
CONCLUSIONS OF LAW
1 This Court has jurisdiction over the parties and the subject matter of this cause
2 The purpose of the inquiry in a boundary dispute action is to locate and follow the footsteps of the original surveyor Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905) Various rules of construction for purposes of ascertaining boundaries have been adopted by the courts to aid in following the surveyors footsteps In accordance with these rules the priority of the calls which are found in the original surveyors field notes is as follows (1) natural objects (2) artificial objects (3) courses (4) distances and (5) quantities Newsom v Pryors Lessee 20 US (7 Wheat) 7 5 LEd 382 (1822) Stafford v King 30 Tex 257 (1867) Thomas Jordon Inc v Skelly Oil Co 296 SW2d 279 (TexCivApp Texarkana 1956 writ refd nre)
The purpose of the rules of priority of calls in an original survey is to aid the Court in finding the best evidence of what the original surveyor actually did on the ground In the event the footsteps of the original surveyor can be more accurately traced or his intention more accurately ascertained by following a call of lower order then the rules of priority are inapplicable See Linney v Wood 66 Tex 22 17 SW 244 (1886)
These rules of construction are designed to carry out the intention of the parties The intention of the parties is considered to be essentially the same as that of the surveyor Strong v Sunray DX Oil Co 448 SW 2d 728 (TexCivApp Corpus Christi 1969 writ refd n r e) The surveyors intention is to be ascertained by scrutinizing what he actually did in making the survey as reflected by his field notes and the attending totality of circumstances of the survey Blake v Pure Oil Co 128 Tex 536 100 SW2d 1009 (TexComApp1937) Finberg v Gilbert 104 Tex 539 141 SW 82 (1911) Atwood v Willacy County Navigation District 271 SW2d 137 (Tex CivApp San Antonio 1954 writ refd n r e) It is well established that the various calls contained within the field notes must be harmonized and as few calls as possible disregarded so that the calls which result in the least
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxv |Appendix
conflicts in the total survey are given precedence Wilson v Giraud 111 Tex 253 231 SW 1074 (1921) See Orn Vanishing Footsteps of the Original Surveyor 3 Baylor LRev 273 (1952)
3 It is readily apparent that there is an ambiguity in the description contained within surveyor Collards field notes since the survey fails to close as it should and does not coincide with the sketch on the original field notes The various subsequent resurveys do not coincide with either the original field note description or the field note sketch It is therefore necessary to apply the various rules of construction and admit parol evidence to resolve the conflicts and to establish the lines which were actually run by the surveyor See Bond v Middleton 137 Tex 550 155 SW2d 789 (1941)
4 The burden of proof is upon the Government to locate and prove the boundary by a preponderance of the evidence See Brown v Eubank 378 S W2d 707 (TexCivApp Tyler 1964 writ refd n r e) Hancock v Bennett 230 SW2d 328 (TexCivApp Waco 1950 no writ hist) In establishing the existence and location of original witness trees the Government must introduce sufficient evidence [to] carry the case beyond coincidence and into the realm of [a reasonable certainty] Kirby Lumber Corp v Lindsey 455 S W2d 733 740 (Tex1970) See Gates v Asher 154 Tex 538 280 SW2d 247 (1955)
5 There is a presumption that surveyor Collard actually surveyed all the lines of the Riggs survey ran the 490490 course and distances and marked the boundaries as called for in the field notes A survey must be so construed unless later surveyors following the original surveyors footsteps demonstrate that the original surveyors calls constitute a mistake or are otherwise incorrect Gibson v Universal Realty Co 378 SW2d 115 (TexCivApp Houston 1964 writ refd nre) State v Sullivan 127 Tex 525 92 SW2d 228 (Tex ComApp1936)
6 A period of 135 years has elapsed since the Riggs survey was located Time has destroyed the original witness trees marked by surveyor J S Collard However the calls contained within the field notes for two pine witness trees at the south corner of the survey can still be identified with reasonable certainty Two stump holes have been identified by credible evidence as being at the intersection of old and well-marked boundary lines Construing the field notes for the patent of the Riggs survey in light of all the surrounding circumstances these calls are the most certain and positive factors available in locating the footsteps of the original surveyor See Kirby Lumber Corp v Lindsey 455 SW2d 733 (Tex 1970) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e) Muldoon v Sternenberg 139 Tex 22 161 SW2d 783 (TexComApp1942) Miller v Southland Life Ins Co 68 S W2d 558 (TexCivApp El Paso 1934 no writ hist) Smith v Turner 13 S W2d 152 (TexCivApp El Paso 1928) revd on other grounds 122 Tex 338 61 SW2d 792 (1933) Plowman v Miller 27 SW2d 612 (TexCivApp El Paso 1930 writ dismd) Petty v Paggi Bros Oil Co 254 SW 565 (TexCom App1923) Antone v Hoffman 256 S W 656 (TexCivApp Texarkana 1923) Wm Cameron amp Co v Taylor 288 SW 268 (TexCivApp Beaumont 1926) Weatherly v Jackson 98 SW2d 1037 (TexCivApp San Antonio 1936 writ dismd) Findlay v State 238 SW 956 (TexCivApp Austin 1921) affd 113 Tex 30 250 SW 651 (1923) Compare Kirby Lumber Co v Adams 127 Tex 376 93 SW2d 382 (TexComApp 1936) Runkle v Smith 63 TexCiv App 549 133 SW 745 (1911)
7 The resurvey conducted by Gibbs Brothers and Company in 1929 and the resurvey of surveyor Morgan in 1967 tend to locate and reestablish the corners and the boundary line of the original survey See Barnes v Wingate 342 SW2d 352 (TexCivApp Beaumont 1960 writ dismd) East Texas Pulp and Paper Co v Cox 381 SW2d 78 (TexCivApp Beaumont 1964 writ refd n r e)
8 Since the footsteps of surveyor J S Collard have been identified with reasonable certainty it is apparent that the calls for distances in the original field notes are erroneous The first call of 40966 varas actual should be 41330 varas the second call of 40966 varas actually should be 42033 varas the third call of 40560 varas actually should be 40014 varas and the fourth call of 41046 varas actually should be 41621 varas See Sansing v Bricka 159 SW2d 142 (TexCivApp Amarillo 1941 writ refd w o m)
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxvi |Appendix
9 A period of more than 100 years has elapsed since the adjoining Washington County Railroad Company survey No 1 was located The original witness trees marked by surveyor J M Wade have deteriorated and vanished However a stake on the south or southwest bank of Little Caney Creek has been perpetuated through the years by resurveys One such resurvey was by Clinton Bybee in 1910 Both Gibbs Brothers and Company in 1929 and surveyor Morgan in 1967 cited and reported the Bybee survey witness trees Surveyor Morgan also found a stump hole of one of the original witness trees marked by surveyor Wade A line from US Forest Service monument J-156 on a course S 44deg W would pass through the south corner of the Riggs survey and intersect the south corner of Washington County Railroad Company survey No 1 As a 491491 result the south corner of the Riggs survey at US Forest Service monument J-226 is further established
10 The southeast boundary of the Riggs survey as marked by monuments J-156 and J-226 has been acquiesced in by the adjacent survey owners for a comparatively long period of time See Kirby Lumber Corp v Lindsey 455 S W2d 733 (Tex1970) Bolton v Lann 16 Tex 96 (1856)
11 The declarations of Ed Mays as prior owner of an adjoining survey which acknowledged the boundary line proffered by the Government is supportive evidence of the actual boundary See Goodson v Fitzgerald 40 TexCivApp 619 90 SW 898 (1905)
12 The defendant is bound by its actions in purchasing property in Washington County Railroad Company survey No 1 by deeds from Ed Mays in 1948 and L amp M Lumber Company in 1961 as well as a special warranty deed in 1968 These recorded deeds describe the property as having its south corner on Little Caney Creek The defendant is also bound by its actions in leasing property in Washington County Railroad Company survey No 1 to L A Carnes by leases dated July 22 1958 March 5 1963 and June 26 1970 In these leases the description of the south corner of the survey is by reference to the defendants deeds See Reynolds v Bradford 233 SW2d 464 (TexCivApp Fort Worth 1950 no writ hist) Pierce v Schram 53 SW 716 (TexCivApp 1899) Linney v Wood 66 Tex 22 17 SW 244 (1886)
13 The defendant presented no evidence establishing or tending to establish the footsteps of surveyor J M Wade in running the original surveys of the adjoining Washington County Railroad Company survey No 1 through No 6 Defendants evidence reflects that no patent evidence was available and as a result it failed to identify the sources and to connect the source of its evidence to the original patent witness calls
14 The Government has presented substantial credible evidence locating the east corner of the Riggs survey at a point now monumented by US Forest Service monument J-156 There is no evidence before the Court other than that presented by the Government which locates the east corner of the Riggs survey
15 The Government has presented substantial credible evidence locating the south corner of the Riggs survey and the east corner of the Washington County Railroad Company survey No 1 The defendant has presented no credible evidence tending to locate the south corner of the Riggs survey or the east corner of the Washington County Railroad Company survey No 1
16 The greater weight of the credible evidence adduced at the trial of this cause establishes the southeast boundary of the Riggs survey to be at a line connecting US Forest Service monuments J-156 and J-226
The foregoing constitute the Courts Findings of Fact and Conclusions of Law Counsel will prepare and submit an appropriate judgment within ten (10) days incorporating these Findings of Fact and Conclusions of Law The Clerk will notify counsel
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxvii |Appendix
++++++ CASE 4 ++++++
STACEY amp MARILYN TITUS Plaintiffs and Appellees v SANDRA CHAPMAN Defendant and Appellant
SUPREME COURT OF SOUTH DAKOTA
2004 SD 106 687 NW2d 918
PRIOR HISTORY APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY SOUTH DA-KOTA HONORABLE JANINE M KERN Judge
DISPOSITION Affirmed
COUNSEL COURTNEY R CLAYBORNE of Johnson Eiesland Law Firm Rapid City South Dakota Attorneys for plaintiffs and appellees
JAMES W OLSON of Wilson Olson amp Nash Rapid City South Dakota Attorneys for defendant and appellant
[P1] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County South Dakota Both parties agreed on the proper legal boundary line but differed as to its location based on competing surveys Following a hearing on opposing motions for summary judg-ment the trial court granted Tituses motion The trial court also held Chapman did not establish a claim of adverse possession The trial court did not grant Chapmans motion to join necessary parties Chapman appeals all three issues We affirm
FACTS AND PROCEDURE
[P2] The land in dispute is lo-cated in rural Pennington County South Dakota In [2] 2001 Tituses pur-chased a parcel of land commonly known as Lot A located in the Northwest Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian The land was unoccupied at the time the law suit was filed
[P3] On July 5 1989 Chapman purchased the property commonly known as Lot 2 located in the Northeast Quarter of the Southeast Quarter Section 12 Township One North Range Six East of the Black Hills Meridian Throughout her ownership of the land Chapman has maintained a mobile home on the property Prior to Chapmans ownership of Lot 2 the property was unoccupied unenclosed by a substantial fence or other natural barrier and uncultivated
[P4] The two lots have a common property line both parties agreed is the 116th section line of Section 12 Surveys of the area indicated the Chapman lots western edge terminated at the 116th section line while the Tituses lots eastern edge terminated at the 116th section line However competing surveys indicated two different loca-tions for the 116th section line The dispute centered on a 34 foot strip of land claimed by both parties and upon which Chapman
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxviii |Appendix
had located [3] a mobile home cistern and portions of an old fence that never substantially enclosed the property
[P5] The US Forest Service originally surveyed the area in question in April of 1879 and August of 1886 The survey resulted in a plat of Section 12 Township One North Range Six East of the Black Hills Meridian The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners 1
1 In surveying and subdividing townships government surveyors were required to establish section corners by a mound four pits and a stake and a quarter section corner by a mound two pits and a stake or post the stakes or posts to be properly marked to indicate the corner represented Randall v Burk Tp of Minnehaha County 4 SD 337 351 57 NW 4 9 (1893)
Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey are monuments They include posts pillers [sic] stone markers cairns fixed natural objects[] blazed trees and wa-tercourses Any natural or arti-ficial physical object on the ground which helps establish the location of a line is a monument Block v Howell 346 NW2d 441 444 n1 (SD 1984) (citing Blacks Law Dictionary 909 (1979))
[4] [P6] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the [922] Southeast Quarter of Section 12 together with other property The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 116th line of Section 12 The eastern boundary of Lot A was not monumented by Bangs However the Bangs survey in-dicated an artificial monument an iron pin on the southern portion of the 116th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter The record is unclear if Bangs set the iron pin or merely located it when conducting his survey
[P7] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A B and C The Chapman lot was not platted at the time but was eventually to be further subdivided in 1983 from Tract B The western boundary of Tract B was intended to terminate at the 116th section line according to the Ferguson [5] survey
[P8] However Ferguson did not follow the original US Forest Service Black Hills monuments to determine the original location of the 116th line Instead Ferguson located an iron pin or pipe without a surveyors cap at the southwest corner of Tract C Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 116th line There were no facts to indicate the origins of the iron pin or to identify it as denoting the original 116th section as located by the US Forest Service survey Despite the absence of clear and convincing evidence as to the identity of the pin Ferguson accepted it as the 116th line and conducted measurements to locate the western edge of Tract B which would eventually become the western edge of Lot 2 Ferguson indicated he marked the other three corners of Tract B with 58th inch rebar The end result was the addition of approximately 34 feet to Tract B on its western boundary
[P9] On April 18 1983 a plat subdividing Tract B into lots including Lot 2 which was eventually purchased by Chapman was filed by surveyor David Landguth Landguth relied on the Fer-guson survey and set the western edge of Lot 2 at the 116th [6] section line However the 116th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the US Forest Service survey Landguth then marked the western boundary corners of Lot 2 with 58th inch rebar
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxix |Appendix
[P10] Following their purchase of Lot A in 2001 Tituses commissioned a survey of their property prior to be-ginning construction of a new home The survey conducted by Dean Scott re-traced the original footsteps of the US Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the US Forest Service in 1879 and 1886 which monumented the southeast southwest and northwest corners of Section 12 Instead of using the iron pin of unknown origin as the location of the 116th section line as had Ferguson and Landguth before him Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot [923] portions to arrive at the original location of the 116th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States
[P11] When Scott was unable to ascertain [7] the exact location of the northeast corner due to the obliteration of the monument he ex-tended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the US Forest Service surveyors Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States the location of the northeast corner of Section 12 was computed Once the complete exterior boundary of Section 12 was determined Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the US Forest Survey
[P12] Tituses moved for summary judgment and the trial court granted the motion By order the trial court es-tablished the 116th line as originally set by the US Forest Service as the property line common to Tituses and Chapman The trial court also entered an order denying Chapmans motion for summary judgment on the issue of adverse possession The trial court held the markings used to establish Chapmans property line were not open visible notorious continuous or hostile oc-cupation [8] of the property and in the alternative Chapman had not been in possession of the property for 20 years as required by statute Chapmans motion to join necessary parties was also denied by the trial court
STANDARD OF REVIEW
[P13] Summary judgment is proper where the pleadings depositions answers to interrogatories and ad-missions on file together with the affidavits if any show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law SDCL 15-6-56(c) We will affirm when no genuine issues of material fact exist and the legal questions have been correctly decided Holzer v Dakota Speedway 2000 SD 65 P8 610 NW2d 787 791 (citing Bego v Gordon 407 NW2d 801 804 (SD 1987)) All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party Morgan v Baldwin 450 NW2d 783 785 (SD 1990) (additional citations omit-ted) The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law Id Conclusions of law are reviewed [9] under a de novo standard giving no deference to the circuit courts con-clusions of law Sherburn v Patterson Farms Inc 1999 SD 47 P4 593 NW2d 414 416 (citing City of Colton v Schwebach 1997 SD 4 P8 557 NW2d 769 771)
[P14] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law City of Deadwood v Summit Inc 2000 SD 29 P9 607 NW2d 22 25 Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court Sherburn 1999 SD 47 P4 593 NW2d at 416 (additional citations omitted)
[P15] A partys status as an indispensable party is a conclusion of law See Theiman v Bohman 2002 SD 52 P14 645 NW2d 260 262 As such a trial judge has no discretion
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxx |Appendix
whether to join an indispensable party as the language of SDCL 15-6-19(a) is mandatory Smith v [924] Albrecht 361 NW2d 626 628 (SD 1985) (citing Kapp v Hansen 79 SD 279 286 111 NW2d 333 337 (SD 1961)) As a conclusion of law it is reviewed by this Court de novo [10] giving no deference to the circuit court Sher-burn 1999 SD 47 P4 593 NW2d at 416 (citations omitted)
ANALYSIS AND DECISION
[P16] 1 Whether the trial court erred when it established the boundary line as the 116th line set by the US Forest Service
[P17] Government surveys not surveys conducted by private individ-uals create rather than merely identify boundaries Cox v Hart 260 US 427 436 43 S Ct 154 157 67 L Ed 332 337 (1922) The term original survey refers to the official gov-ernment survey performed under the laws of the federal government by its official agency See Id Block v Howell 346 NW2d 441 444-45 (SD 1984) Walter G Robillard amp Lane J Bouman Clark on Surveying and Boundaries sect 412 (5th ed 1976)
[P18] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey Block 346 NW2d at 444 Randall v Burke Tp 4 SD 337 347 57 NW 4 10 (1893) In a retracing or resurvey a surveyor must take care to observe and follow the boundaries and monuments as run and marked by the [11] original survey Block 346 NW2d at 444 Boundaries as established by original government surveys are unchangeable and must control disputes Christianson v Daneville Tp 61 SD 55 58 246 NW 101 102 (1932)
[P19] Original monuments those located by the original surveyor mark true corners Lawson v Viola Tp 50 SD 555 557-558 210 NW 979 980 (1926) Where the location of the original monument can be found or can be es-tablished by evidence such location shall be held to be the true corner regardless of the fact that resurveys may show that it should have been located elsewhere Id (citing Byrne v McKeachie 34 SD 589 149 NW 552 (1914) Hoekman v Iowa Civil Township 28 SD 206 132 NW 1004 (1911) Randall 4 SD 337 57 NW 4 Beardsley v Crane 52 Minn 537 54 NW 740 (Minn 1893) Ogilvie v Copeland 145 Ill 98 33 NE 1085 (Ill 1893) Nesselrode v Parrish 13 NW 746 59 Iowa 570 (Iowa 1882) Where the original monument is obliterated that is it cannot be located nor established by evidence then a corner can be es-tablished by a new survey Lawson 50 SD at 558 210 NW2d at 980 [12] (citing Randall 4 SD at 355 57 NW at 10 Washington Rock Co v Young 29 Utah 108 80 P 382 (Utah 1905)) Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes Id However if the point at which an original monument was located can be ascertained by the court the line as indicated by the government survey prevails Dowdle v Cornue 9 SD 126 127 68 NW 194 194-195 (1896)
[P20] SDCL 43-18-7 provides
In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey but shall not give undue weight to partial and doubtful evidence or appearances of monuments the recognition of which shall require the presumption of marked errors in the original survey and he shall note an exact description of such apparent monuments
[925] [P21] The 1970 Ferguson survey located an iron pipe or pin without a survey cap The surveyor assumed the pin indicated the 116th section line as intended by the US Forest
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxxi |Appendix
Service The Ferguson [13] survey failed to walk in the footsteps of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the 116th line based on its location in relation to the true section corners established by the original government survey Instead Ferguson conducted some retracing of the original corners of Section 12 in the field but the majority of the meas-urements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the 116th section line The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous as-sumption utilized by Ferguson in 1970
[P22] The Tituses survey con-ducted in 2002 did walk in the foot-steps of the original government surveyor The Tituses surveyor Scott located three original corner monuments and retraced the original US Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12 Scott then properly computed the aliquot divisions including the 116th section line in compliance with the Manual of Instructions [14] for the Survey of the Public Lands of the United States
[P23] Chapman contends Tituses were required to use the Ferguson survey in order to determine the boundary line Their argument relies on the term original survey in SDCL 43- 18-7 as indicating the first survey to plat the tracts from which Chapmans Lot 2 was subdivided Reliance on the 1970 Fer-guson retracing is fatal to Chapmans claim The original survey in SDCL 43-18-7 refers to the original US Forest Service survey conducted in the 1800s not the first private survey to plat the subdivision of the tracts in question
[P24] The record indicates that Tituses survey complied with the re-quirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor Conversely the record indicates that Chapmans surveys did not follow the requirements for retracing an original survey
[P25] ] There are no disputed questions of material fact Thus the choice of selecting between the two differing sets of surveys is a question of law For the reasons set forth above we conclude the trial court made the correct decision Tituses were entitled [15] to judgment as a matter of law
[P26] 2 Whether the trial court erred when it denied Chapmans motion for summary judgment on the issue of adverse possession
[P27] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse pos-session is proven Cuka v Jamesville Hutterian Mut Socy 294 NW2d 419 421 (SD 1980) To establish title by adverse possession the claimant must be in actual open visible notorious continuous and hostile occupation for the statutory period Lewis v Moorhead 522 NW2d 1 3 (SD 1994) Although the statutory period for adverse possession is 20 years under SDCL 15-3-1 tacking allows a party to add its own claim to that of previous adverse possessors in interest and under [926] whom the party claims a right of possession 2 Estate of Billings v Deadwood Con-gregation of Jehovah Witnesses 506 NW2d 138 141 (SD 1993) (citing Walker v Sorenson 64 SD 143 148 265 NW2d 589 591 (1936))
2 SDCL 15-3-1 provides
No action for the recovery of real prop-erty or for the recovery of the possession thereof shall be maintained unless it appears that the plaintiff his ancestor predecessor or grantor was seized or possessed of the premises in question within twenty years before the com-mencement of such ac-tion
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxxii |Appendix
[16] [P28] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim Summit Inc 2000 SD 29 P15 607 NW2d at 26 (citations omitted) The party asserting a claim under SDCL 15-3-12 must engage in actual open visible notorious continuous and hostile occupation of the property for the statutory period Id (citations omitted) Occupation must rise to the level of a substantial enclosure or usual cultivation or im-provement Schultz v Dew 1997 SD 72 P12 564 NW2d 320 323
[P29] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1 Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983 which both predate the filing of the current action by Tituses in 2003 Chapman argues the filing of the plat as surveyed in 1970 and the placement of 58th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B constituted open visible [17] and notorious occupation for the req-uisite 20 year period
[P30] ] The trial court concluded the markings used to establish Chapmans property line were insufficient evidence of actual open visible notorious continuous and hostile occupation for the statutory period Alternatively the trial court concluded Chapman was not in possession of the property for 20 years as Tituses granted permissive use of the property on January 18 2003
[P31] We are convinced the un-contested facts as presented in the record are insufficient to constitute adverse possession and Tituses are entitled to judgment as a matter of law Chapman did not own the property until 1989 and the property itself was not platted as an individual lot until April 18 1983 by Landguth Additionally the plat noted the 116th section line as the western boundary Despite indicating the location of the 116th section line by the iron pin found by Ferguson there were no other markings to denote actual open visible notorious continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property
[P32] We agree the iron rebar [18] markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13 An enclosure need not be absolutely secure to satisfy the substantial enclosure statutory requirement Schultz 1997 SD 72 P13 564 NW2d at 323 While we have held a fence or natural barrier such as a tree line is sufficient we have never held something as meager as two 58th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession See Schultz 1997 SD 72 P13 564 NW2d at 323 (holding a tree line along a driveway was sufficient to constitute an [927] enclosure within the meaning of the statute) We decline the invitation to do so today
[P33] 3 Whether the trial court erred when it denied Chapmans motion to join necessary parties
[P34] Chapman contends the trial courts failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation Chapman argues the issue of the western boundary line [19] between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the 116th line as their western boundary line In the alternative Chapman argues that determining the common boundary line between the Tituses and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Tituses and Chapman We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxxiii |Appendix
[P35] SDCL 15-6-19(a) provides in relevant part
A person who is subject to service of process shall be joined as a party in the action if (1) In his absence complete relief cannot be accorded among those already parties or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double multiple or otherwise inconsistent obligations by reason of his claimed [20] interest If he has not been so joined the court shall order that he be made a party
[P36] The determination of whether or not a person is an indis-pensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case Provident Tradesmens Bank amp Trust Co v Patterson 390 US 102 119 88 S Ct 733 743 19 L Ed 2d 936 950 (1968) Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties Kapp 79 SD at 286 111 NW2d at 337 (citation omitted) The proper remedy for failure to join parties is the joinder of the parties and not dismissal of the lawsuit so long as it is possible to join the parties Agar School District No 58-1 Bd of Educ Agar SD v McGee 527 NW2d 282 287 (SD 1995) (quoting Johnson v Adamski 274 NW2d 267 268 (SD 1979) (citing SDCL 15-6-19(b)))
[P37] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a) as none [21] of the enumerated prerequisites apply First complete relief can be granted to Tituses and Chapman on the issue of the correct location of the 116th section line as it relates to the boundary of their adjacent lots
[P38] Second neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman The res-olution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in [928] the future The trial courts order locating the 116th section line as originally surveyed by the US Forest Service is limited to the common boundary between Tituses and Chapman The order does not address the boundary between Tituses lot and Tract B and C
[P39] There is no danger that either Tituses or Chapman parties to the present litigation would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests Chapmans property is only adjacent to Tituses property on its western boundary and neither Tracts B nor C share the 116th section line in common with Chapman While Tracts B and C do [22] share the 116th line in common with Tituses again the trial courts order addressed only the issue of the boundary between Tituses and Chapman
[P40] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C as neither owner was an indispensable party to the litigation We find no abuse of that discretion by the trial court Affirmed
[P41] SABERS KONENKAMP ZINTER and MEIERHENRY Justices concur
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxxiv |Appendix
++++++ CASE 5 ++++++
THE STATE v DANIEL COLEMAN Secretary of the State NEW JERSEY SUPREME COURT 13 NJL 98 1832 NJ Sup Ct
February 1832 Decided
PRIOR HISTORY [1] By an act of the legislature passed in March 1828 commissioners were appointed to as-certain and determine the boundary line between the county of Gloucester and the counties of Salem and Cumberland and were directed to make a report or certificate of their survey to the Secretary of the State to be recorded and filed in his office The certificate returned to the Secretary by the com-missioners was brought into this court by certiorari sued out on the part of the board of chosen freeholders of the county of Gloucester Several reasons assigned for setting it aside were argued by White and the Attorney-General for Gloucester and by Daniel Elmer for Cumberland
DISPOSITION Return quashed
HEADNOTES
Where by an act of the legislature three commissioners were appointed to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland who were to run survey mark and ascertain the line of partition and one only of the com-missioners surveyed and marked the line as returned and neither of the others fixed the points surveyed or marked the line and was not present when either was done or exercised his judgment in respect to it this court will on certiorari quash the return or cer-tificate made by the commissioners to the Secretary of the State If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature A line surveyed marked and ascertained in the manner prescribed as aforesaid is the only line which can bind the respective counties or ought to be certified to the Secretary of the State
Though the commissioners were ap-pointed by a special act of the leg-islature yet this cannot curtail the superintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior tribunals especially of statutory erection is in full vigor
JUDGES EWING C J DRAKE J FORD J
OPINION BY EWING FORD
[99] EWING C J The duties to be performed by the commissioners ap-pointed in the act of March 1828 to settle the boundary line between the county of Gloucester and the counties of Salem and Cumberland are distinctly pointed out They are to run survey mark and ascertain the line of partition beginning at the southernmost and main branch of Great Egg Harbor River at the head thereof and thence upon a direct line to the [2] head of Oldmans Creek And in so doing they are to conform in all things to the requirements of the general act of March 1798 for ascertaining the boundaries of counties and townships By the latter act Rev Laws 354 sec 4 the commissioners or any two of them shall cause the line of partition or such part thereof as shall be specified in or become necessary by their appointment to be run surveyed marked and ascertained and the survey certified under their hands or the hands of any two of them is to be delivered to the Secretary of the State to be by him recorded and filed The said line so surveyed marked ascertained and certified is to be valid and effectual and to be the
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxxv |Appendix
boundary between the counties By the phrase cause to be run in the latter act I apprehend no substantial difference of duty is contemplated from what is prescribed in the other act by the words to run The commissioners might not be practical surveyors and would in such case find the aid of professional artists req-uisite But the work was to be performed under their inspection They were to direct to guide to judge If the termini or either of them were uncertain the united [3] opinions of at least two of them were to fix the location The mode of expressing the duties of the commissioners may be somewhat sim-plified by using some of the words of the legislature comprehending however the meaning of the whole The commis-sioners were directed to survey and mark the line of partition
[100] From the affidavits of the commissioners themselves which have been laid before us it appears to me the duty was left to be performed and was performed by one only One only fixed the point which has been certified in their return as the head of Egg-Harbor River One only surveyed and one only marked the line as returned Neither of the others fixed the point surveyed or marked the line was present when either was done or exercised his judgment in respect to it The business was concluded as appears by the affidavits in the following manner Beginning at the head of Oldmans Creek the commissioners caused an experimental line to be run by a practical surveyor until it struck Egg-Harbor River Neither of them was satisfied that the termination of this line was the point required the head of the main branch of the river one of them William Irick wishing [4] to go to the head of another branch farther westward and the other commissioners Messieurs Swain and Earl being of opinion they were already too far down the branch Differing thus materially Mr Irick soon withdrew from farther service The remaining commissioners as Mr Earl testifies agreed as to near about the place where the head of the southernmost and greatest branch of Egg-Harbor River should be They fixed a post or stake subject to be removed either above or below as the course which they agreed to run from the head of Oldmans Creek should strike the branch They agreed to this stake or post as an object for which the surveyor should run from the head of Oldmans Creek with directions to strike it if he could and if he could not to place his monument wherever the course came out if within two rods of the stake at right angles Joshua Swain and myself says Mr Earl had no hesi-tation in determining the principle which was first to fix about the place where we considered the head of the southernmost and greatest branch of Great Egg-Harbor River to be and having the course and distance run by Joseph Saunders surveyor and the angle given Joshua Swain [5] and myself agreed that a course should be calculated from his running to start from the head of Oldmans Creek and run a straight line to or near a stake fixed by us the stake to be moved up or down so as to meet the intersection of the said course This agreement being made between us [101] continues Mr Earl Joshua Swain returned home and left me to prosecute the work and mark the line as agreed to be established as the county line which I accordingly did with the assistance of Jacob Wick and others The line as surveyed by Mr Earl was marked at sundry places on the route by the erection of stones and the notching of trees and fell Mr Earl says about three or four rods above the stake and at right angles about twenty-five feet or one rod
It thus appears that a random line was run a random post placed and a principle or method of ascertaining the true line was agreed upon The residue of the duty was performed by a single commissioner He surveyed the line which was returned and certified as the boundary line It was marked by him and he fixed the terminus at Egg-Harbor River
From this view of the case it appears to me that the duty of the commissioners [6] was not performed either in the spirit or the letter of the act of the legislature
Both these commissioners express their opinions in their affidavits that the line described in their cer-tificate to the Secretary of the State is the true boundary line between the counties Into the merits of this question I do not propose to enter Over that subject the jurisdiction is I think in their not in our hands The same claim of correctness might however very probably
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxxvi |Appendix
have been made and with as much truth and justice if the other commissioners had altogether remained at home and confided the whole practical operation to Mr Earl If the true line has been found it has not been done in the manner prescribed by the wisdom of the legislature and we have already seen that a line in that manner surveyed marked and ascertained is the only line which is to bind the respective counties or ought to have been certified to the Secretary
Upon the argument at the bar a strong doubt if not a full conviction was expressed by the defendants counsel that a writ of certiorari to remove the proceedings and certificate now in question cannot be sustained There is I think no room for [7] doubt The consideration that the commissioners were appointed by a special act of the legislature cannot curtail the su-perintending power of this court The principle on which the authority of this court rests to inspect the proceedings of inferior [102] tribunals espe-cially of statutory erection is in full vigor Indeed the special act itself contemplates that their proceedings shall be only as valid and effectual as if their appointment had been made in the ordinary mode The jurisdiction of this court was laid down in Ludlow v Ludlow 4 NJL 387 1 South 389 in terms at once broad explicit and correct It has the superintendence of all inferior courts both civil and criminal of all corporations in the exercise of their corporate powers and of all public commissioners in the execution of their special authorities and public trusts It causes their proceedings to be certified before it in order that upon inspection they may be stayed affirmed or set aside as the case may require
The return or certificate made by the commissioners to the secretary ought in my opinion to be quashed
DRAKE J was of the same opinion
FORD J A [8] certiorari was sued out in the name of the State of New Jersey against Daniel Coleman Sec-retary of the State defendant com-manding him to send and certify to this court a return existing on the files in his office which was made by Joshua S Earl and Joshua Swain two of the commissioners appointed by an act of the legislature of the 1st of March 1828 to run survey mark and ascertain the partition line which divides the counties of Salem and Cumberland from the county of Gloucester the writ being allowed at the instance of the county of Gloucester upon their complaint of being aggrieved by the proceedings of those commissioners On the argument of the cause an objection was taken that the Secretary of the State was made defendant instead of the county of Gloucester The command in the writ for the Secretary to certify the return as it existed in his office was admitted to be proper and necessary but as he was no party to the proceedings of the commissioners nor any way concerned in interest that he was improperly made defendant The objection is certainly well founded The statute directs that before the com-missioners proceed to business notice shall be served on the [9] board of freeholders of each county thus plainly shewing them to have been the parties intended Two of those counties have signified their acquiescence in the return of the commissioners but the county of Gloucester alleges itself aggrieved and the State which is always [103] plaintiff in matters of a public nature sends its writ making the ag-grieved party defendant in order to listen to the grounds and reasons of his complaint As the secretary has no complaints against the return it was wrong to name him as defendant but as it is only an error in form and has no bearing on the merits of the return it may be amended and the board of chosen freeholders of the county of Gloucester be substituted for the name of the secretary as was done in the case of the State v Kirby 5 NJL 835 2 South 835 We come then to consider the merits
The statute appointed three com-missioners the two above named and William Irick to run survey mark and ascertain the aforesaid partition line beginning at the southernmost and main branch of Great Egg-Harbor River at the head thereof and thence upon a direct line to the head of Oldmans Creek conforming [10] in all things to the directions of a previous act
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxxvii |Appendix
Rev Laws 353 the 4th section whereof gives power to the commissioners or any two of them to cause such line to be run and as-certained
First The first objection to their proceedings is that the head of the branch of Egg-Harbor River was fixed upon by two of the commissioners without their having a consultation with the third commissioner but the affidavits do not support the fact on which the objection is founded on the contrary they show a consultation among the three commissioners touching the head of this branch on which each one gave his opinion two of them adjudging it to be at or about the place where they had planted a stake and William Irick adjudging the head to be further west so they consulted altogether about the place of the head and as they could not accord in one opinion the stake was fixed on by a majority The legislature was not willing that a commission should fail of being executed by the commis-sioners being equally divided on any point and they provided against such a contingency by naming an odd number of commissioners any two of whom had power under the 4th section [11] of the general act in case of disagreement to cause the said line to be ascertained and marked I take this to be a full answer to the first objection
The second objection to the return is that the commissioners adjudged a certain stake to be not the head but at or about the [104] head of the branch This objection I apprehend has nothing substantial in it and is only a play upon words about a matter that is sufficiently certain The origin of a river or branch is very seldom found to be a spring or fountain whose centre could be readily taken but a swamp overspreading several acres of ground through which the water flows in guts of various directions except in a drought when some of them become dry or stagnant or the motion in one becomes different from that in another or what was a water channel at one season may have none existing in it at another season These appearances seem to have embarrassed the commissioners in this case and caused a split in their opinions Who could lay his finger on a spot in such a swamp and say unhesi-tatingly here is the head of the branch and no where else within a chain a rod or an inch When two of the commissioners [12] planted a stake in the swamp for the head of the branch they did not mean that more than any other spot within a couple of rods but they calculated a course from Oldmans Creek to it de-claring that if it came out within a couple of rods it would strike the head of the branch as near as in their best judgments they could ascertain it On running this calculated course from Oldmans Creek a distance of more than twenty miles it came out within two rods of the stake and therefore they returned that course as the true one from Oldmans Creek to strike the head of the most southerly branch of Great Egg-Harbor River They returned it a certain course not at or about such a course There are no such words in the return They are only in the conversations of the commis-sioners when deliberating among them-selves If the proceedings should be vacated on this account a second set of commissioners might vary two or three rods from them and a third set two or three rods from these and it could not be demonstrated that either of them was wrong in respect of two or three rods for the head of a branch which within that distance ambulates perhaps three or four times a year with [13] the seasons and state of water in the swamp It is no more a mathematical point than the shore of a river which varies more or less with a shower of rain The return gives a certain course from the head of Oldmans Creek to the head of the branch in question which is not contradicted by the discussions or the conversations [105] of the commissioners nor shewn to be in any respect wrong We must therefore consider it right
The third objection to the return is that when Sanders who was nominated by all three of the commissioners as a practical surveyor to run and mark the line had executed that duty only in part his place was assumed and the remaining duties of it performed by Joshua S Earl without the consent of William Irick Some doubt whether the commissioners had any power of dele-gating their authority to any surveyor to run the line was flung out at the bar but the words of the fourth section are that the said commissioners or any two of them shall cause the said line to be run and marked and are decisive of their power When the commissioners had settled
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxxviii |Appendix
the station at each end and determined the point of compass from one to the other the running [14] and marking of the line left nothing in the discretion of a surveyor it was simply a matter of skill and they might have employed any skilful man and returned his work as their own even if the statute had not given them power to cause it to be done Few men beside practical surveyors could trace a line of this length ac-curately if they had not some practical skill in adjusting the needle to its mark and sighting an object If they might lawfully employ a surveyor they might lawfully confide in his work and I am not prepared to say that their attendance or that of a majority of them in the train of the surveyor was necessary After Mr Sanders had performed some part of the service for the commissioners he de-clined to do any thing more but it was necessary to continue the business and by agreement of the two commissioners Joshua S Earl undertook to perform it he was a practical surveyor and the skill and integrity of him and Sanders being equal the commissioners neither gained nor lost by the exchange But the act is objected to as proceeding from only two of the commissioners without a consultation with the third supposing it to be an exchange when it was no more than [15] doing the surveying for themselves as they had a right to do by the statute they were to do or cause it to be done It was not necessary that each one should have a compass in order to survey for himself nor that each one should settle and look through the sights for himself When such work depends merely on skill it [106] is done better by one person as when the am-putation of a limb or extraction of a tooth has been concluded on they are best performed by a single surgeon It would be ridiculous to have two surgeons each with his hook on one tooth or each pushing his saw on the same bone The ministerial act of one commissioner is the act of the rest who concur in it It was not the act of William Irick who believing the line to be wrong had withdrawn and would not aid or be re-sponsible for doing it but it was the act of the majority who authorized it after consultation among the three
The Fourth objection to the return is that Joshua S Earl run and marked the line by himself in the absence of the other commissioners The absence of William Irick arose from his refusal to have this line run by any person and his putting the responsibility for it on the majority [16] whose right to act without him is undeniable It is the absence of Mr Swain which forms the point of the objection yet he not only concurred in this course but agreed that his fellow commissioner should run it and is so entirely satisfied with the correctness of the work that he has adopted and returned is as the work of both If he had attended the footsteps of Mr Earl through the whole distance of twenty miles and Mr Earl had carried and managed the compass it would not have been their joint act more than it now is The commissioners had a right to confide in the ministerial acts of each other and whether Mr Swain was present or absent can make no difference unless it be argued that each one should have looked at the compass every time it was set which farce is not required by either law or common sense The two commissioners have caused the minis-terial act to be done and having re-turned it as being rightly done it must so be considered by the court until it is shewn to have been done wrong
The fourth objection to the return is that the marks are not made on a straight line No evidence has been produced to this effect The offsets were in another line which was [17] an experimental line only in order to find out by it the true course That experimental line is not mentioned in the return and has nothing to do with it Yet we cannot suppose it otherwise than [107] exceedingly accurate when the course deduced from it hit a stake within two rods at the end of twenty miles On the whole the objections are altogether unfounded and the return ought to be affirmed
Return quashed
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xxxix |Appendix
++++++ CASE 6 ++++++
WILLIAM R HOFER PLAINTIFF-APPELLANT v JOHN J CARINO AND ANITA R CARINO DEFENDANTS-RESPONDENTS
Supreme Court of New Jersey
4 NJ 244 72 A2d 335 1950 NJ
March 6 1950 Argued
March 27 1950 Decided
PRIOR HISTORY [1] On appeal from the Superior Court Law Division Gloucester County Certified from the Appellate Division on motion of the Supreme Court
COUNSEL Mr James B Avis argued the cause for plaintiff-appellant
Mr E Milton Hannold argued the cause for defendants-respondents (Messrs Hannold amp Hannold attorneys)
JUDGES For reversal -- Chief Justice Vanderbilt and Justices Case Heher Wachenfeld and Burling For affirmance -- None The opinion of the court was delivered by Case J
OPINION BY CASE
246] [336] This action in ejectment concerns a disputed boundary line Plaintiff appeals from the judgment entered on the granting of defendants motion for a direction of verdict He alleges as error the granting of that motion and the denial of a like motion in his own behalf
The land is in the village of Wil-liamstown Gloucester County near the intersection of a highway formerly known as Williamstown and Coles Mill Road now Main Street with another highway called Blue Bell Road On April 17 1920 the Hammonton Trust Company executed three conveyances one to the predecessor in title of the plaintiff another to the predecessors in title [2] of the defendants and the third to the pre-decessor in title of Kathryn O Miller not a party to these proceedings The Hofer land lay at the immediate in-tersection of the two highways the Carino land on the Blue Bell Road The two tracts adjoined except for a short distance near the street where they were separated by the Miller tract a wedge-shaped plot fronting on Blue Bell Road The judgment extends the Carino line thirteen and one-half feet at the road frontage into what has heretofore been regarded as the Miller property and from there on back causes his line [247] to overlap both Miller and Hofer as contended by those owners by a varying distance approximately two feet in width at the narrowest point
The deeds although executed on the same day were not given simultaneous recording The deed for the Carino property was recorded May 13 1920 that for the Miller tract May 15 1920 and the one for the Hofer tract June 8 1920 All three descriptions start with be-ginning points related to a single monument described as a stone at the intersection of the center lines of the Blue Bell Road and of the Williamstown and Cloes Mill Roads The Hofer de-scription [3] starts Beginning at a stone in the Williamstown and Coles Mill Road now called Main Street and running thence (1) south 41 degrees 20 minutes east 5082 feet to a stone in the center of the aforesaid street where the Blue Bell Road intersects the same thence (2) south 1 degree 30 minutes east 195 feet to a point in the center of Blue Bell Road The description of the Miller tract is Beginning at a point in the center of Blue Bell Road at a distance of 1950 feet
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xl |Appendix
from a stone in the center of Williamstown and Coles Mill Roads marking the intersection of said roads and extending thence (1) south 49 degrees west 985 feet thence (2) south 86 degrees east 8090 feet to the center of Blue Bell Road thence (3) north along said road 63 feet to the place of be-ginning The Carino description starts thus Beginning at a point in the center of Blue Bell Road at the distance of 825 feet from a stone in the center of the Williamstown and Coles Mill Roads marking the intersection of said roads and the last two courses read (8) east 33 712 feet to the center of Blue Bell Road thence (9) north along the center of said road 632 feet to the place of beginning The [4] deed by which the Hammonton Trust Company acquired title is likewise monumented Beginning at a stone in the Williamstown Coles Mill Road running thence (1) south 41 degrees 20 minutes east 77 links to a stone in the center of the aforesaid road and where Blue Bell Road intersects same thence (2) south 1 degree 30 minutes east 1 chain and 50 links to a stone in the middle of the last mentioned road [248] It will be observed that the sum of the road distances in the deeds out of the Hammonton Trust Company checks fairly accurately with the sum of the road distances in the deed by which it ac-quired title
The stone called for at the inter-section of the center lines of the two roads is not now there but the point of intersection is definitely located and is identified by surveyors marks on the street pavement It is suggested on behalf of defendants that perhaps the Williamstown and Coles Mill Road or Main Street has been widened [337] and that the location of the center line has therefore changed but there is no proof that such is the fact Aside from the roads and their center lines and a tract of land called the Suter tract adjoining Carino on the [5] east there are no monumented points or lines in any of the deeds In the description of the Carino tract the sixth course which is the rear line of that property and slightly more than 300 feet from the road frontage is south 55 degrees east 4246 feet to a point being corner of lands of one Suter and the next course is thence (7) north 44 degrees 30 minutes east along said Suters land 300 feet to a point While this reference to the Suter lands would if they were accurately located give a degree of definiteness there is proof that the tract and the lots taken from it vary approximately fourteen feet as they appear on the ground from their deed descriptions and encroach upon Carino to that extent And that is about the amount of disputed frontage which the latter claims on the opposite side
The intersection between the center lines of Main Street and Blue Bell Road is a monument not so controlling as if the original stone had been found rather than surveyors marks in the pavement but nevertheless a monument The Suter line although placed in some doubt by the evidence that the ground erections do not correspond with the deed descrip-tions and the calls contained [6] therein is nevertheless conceded indeed contended by counsel for both sides to be a monument There is conflict between those two monuments
Further doubt is thrown upon the superiority of the Carino description by this provision in the deed
[249] Subject never-theless to a perpetual right of way of the grantors herein and W J Green et als and Iven Tilton whose property bounds on said right of way their heirs and assigns over a strip of land eight feet wide beginning at a stone in the center of Blue Bell Road marking the southeasterly corner of the above described tract thence running en-tirely the distance of ninety-five and nine tenths feet along the first course by the northerly boundary of the tract above described
By that limitation a strip of Carinos land 8 feet in width running the entire length of and bounded by his first course is dedicated to the purposes of a right of way for the use of the adjoining lands For the distance of 8091 feet the right of way runs along the Miller tract of which the original grantee was one Iven Tilton and for the remaining distance it runs along an equivalent line of the Hofer tract of which the original [7] grantees were William J Green and
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xli |Appendix
others These names will be rec-ognized as the ones stated in the reservation of right of way It could be found from the proofs that at the time of the conveyances out of the Hammonton Trust Company and for years before and after a building stood on the Miller tract served by that right of way and occupying a site that is bisected by the line for which Carino now contends It is not suggested that any right of adverse possession accrued by reason of that fact but it is argued with force that the contemporaneous acceptance given by the parties to the location of the driveway and consequently to the location of the first course of the Carino description is evidential Jackson v Perrine 35 NJL 137 (Sup Ct 1871) Alt v Butz 81 NJL 156 (Sup Ct 1911)
It is also in the proofs that along the course where Carinos description if followed from its beginning point would put his east line but where his engineer refuses to locate that line because to do so would be to encroach upon what is said to be the property of Suter and others there are ancient marks such as an old fence line and a retaining wall in [8] such locations and of such significance as to spell authenticity Defendants engineer on the assumption that the apparent Suter line was ac-curate reversed the directions in the description making correlative changes in the courses and so worked [250] from that line back to a new beginning point for which he now contends
An ambiguity appears in that the description in the Carino deed according to its courses and distances does not close The last course instead of returning as by its terms it should to the beginning point ends twenty-nine [338] feet therefrom in the property of a stranger on the far side of the street There was additional testimony about old iron fences and fence posts at or near other disputed lines
The trial court followed the theory that the defendants deed was the first to go on record and that consequently the area required by plotting that con-veyance according to its courses and distances should determine the extent of its location as against the properties out of the same grantor by deeds later recorded That theory did not weigh the relative value of mere courses and distances as compared with monuments gave no effect to the [9] conflict between monuments and of course disregarded all extrinsic proof Moreover the conveyance was not of the land by acreage
The construction of deeds and other writings in a cause rests with the court A question of construction is a pure question of law to be decided by the court upon the terms of the instrument itself But where there is a latent ambiguity evidence aliunde is admissible and a question of location or of the ap-plication of the grant to its proper subject matter is a question of fact to be determined by the jury by the aid of extrinsic evidence Whenever the lo-cation of the premises is doubtful through uncertainty inconsistent or conflicting terms of the description in the deed the proper location of the premises becomes a question of fact to be determined by the jury on all of the evidence Curtis v Aaronson 49 NJL 68 71 (Sup Ct 1886) McCann v McCarthy 120 NJL 191 (E amp A 1938) And where the deed description does not close it is proper to resort to ex-trinsic evidence which results in the issue becoming one of fact for the jury Calatro v Chabut 72 NJL 458 (E amp A 1905)
It is [10] a general rule in the interpretation of the descriptive words in deeds and grants that courses and distances [251] and admeasurements and ideal lines should yield to known and fixed monuments natural or arti-ficial upon the ground itself Blackman v Doughty 40 NJL 319 326 (E amp A 1878) The line of an avenue or public way if its location is not in dispute is a monument Roosevelt v Shapiro 85 NJL 626 (E amp A 1913) McKenzie v Gleason 69 NE 1076 (Mass 1904) Peck v Denniston 121 Mass 17 (1876) Likewise when definitely lo-cated the land of an adjoining pro-prietor Bielby v Blinn 151 A 357 (Conn 1930) McCausland v York 174 A 383 (Me 1934) Holmes v Barrett 169 NE 509 (Mass 1930) Di Maio v Ranaldi 142 A 145 (RI 1928) The identity of a monument found upon the ground with the one referred
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
Page xliii |Appendix
++++++ Excerpts from Clark ++++++
Page xliv |Appendix
Page xlv |Appendix
++++++ Excerpts from Brownrsquos ++++++
Page xlvi |Appendix
Page xlvii |Appendix
Page xlviii |Appendix
Page xlix |Appendix
Footsteps_NJ14_Handout
APP_Footsteps
MEMORANDUM AND ORDER
FINDINGS OF FACT
I The East Corner of the Riggs Survey
II The South Corner of the Riggs Survey
III The Southwest Boundary of the Riggs Survey
IV The Northwest Boundary of the Riggs Survey
V The Northeast Boundary of the Riggs Survey
VI The Riggs Survey In General
CONCLUSIONS OF LAW
Page xlii |Appendix
to in the deed McCausland v York supra and inconsistency in monumented courses Wilkinson v Lyons 87 NJL 200 (E amp A 1914) are questions of fact for the jury not questions of construction for the court The starting call of [11] a description is considered an important call perhaps more important than any other but it does not always control when there is a conflict Thompson on Real Property (Permanent Ed) Vol 6 sect 3331 Ocean Beach Association v Yard 48 NJ Eq 72 89 (Ch 1891)
For the reasons stated we conclude that the case should have gone to the jury The granting of the defendants motion was error the denial of the plaintiffs motion was not
Defendants motion was made and granted with some confusion in the technical disposition The motion was that the court direct a verdict of dismissal The court directed the jury to return a verdict of no cause of action The judgment placed before us is the clerks record that the jury returned a verdict for dismissal The terminology of a dismissal of an action by a jury is novel and is not within the application of the rules Rule 341 relates to dismissal of actions and directs that nonsuits be superseded by that procedure Nonsuits were granted by the court not the jury and the rules provide for dismissal only by (1) the voluntary act of the plaintiff (2) stipulation by the parties or (3) order [12] [252] of the court The jury verdict should not be designated a dismissal [339] We have treated the present procedure herein as a di-rected verdict for the defendants
The judgment below will be reversed and the cause remanded for a trial de novo
