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Show THE DAILY PACE SIX 19, 1971 TUESDAY, OCTOBER RECORD In The Supreme Court Of The State Of Utah government monument, which is not located on either the same meridional or latitudinal line as the corner sought to be a lost corner there could As the basis of line he no justification to do so by running a single east-we- st a more one than known from corner, any by running single from any of the other or north-sout- h line either east-we- st known corners. And when such lines are run from all of the known corners, four different termini corners are obtained That is what necessitates use of the double proportionate measurement method when the corner cannot be deter- . (...). mined by other acceptable evidence. the aforementioned government pamphlet, it is stated at page 14: In lost interior corner of four sections will be stored by double proportionate measurement. 10. A re- When a number of interior corners of four sections, and corners, are missing on all the intermediate quarter-sectio- n the entire dissides of the one sought to be tance between the nearest identified corners both north and south, and east and west, must be measured. Lost section corners on the township exteriors, if required for control, should be relocated. Emphasis added. In the pemphlct the following definition is at page 12: The term "double proportionate measurement" is applied to a new measurement made between four known corners, two each on intersecting meridional and lititudinal lines, for the purpose of relating the intersection to both. 7. Title 43, Sec. 753, U.S.C.A. 5. "To find the common corner of quarter sections or the legal centqr of a section of land, straight lines must be run from the quarter section corners on the boundary of the section to the opposite quarter corners, the point of Barbizon of Utah, Inc. v. intersection constituting the legal center, 148 (1970). General Oil Co., 24 Utah 2d 321, 324, 471 P. 2d 8 (1962). 6. Reid v. Dunn, 201 Cal. App. 2d 612, 20 Cal.. Rptr. 273, 4. ..." Section 22 in the disputed area at an approximate distance of 450 feet north of the south line of the section and travels in a more or less east-we- st direction. Plaintiff relies on the doctrine of boundary line by acquiescence based on the evidence of his and his predecessors in interest occupation, since the 1880's, of the land south of the Monte Cristo Road and west of Cornia Lane. Defendant, relying on the same doctrine, emphasizes the evidence concerning the fence line, a portion of which each party constructed, line north of the Monte Cristo Road. In other which creates a north-sout- h of the disputed strip lies north of the Monte two thirds words, approximately Cristo Road, and it is only the southerly third that has Cornia Lane as an alleged boundary. The weakness of plaintiff's position is that the boundary line along Cornia Lane which he insists was established by acquiescence has no visible line marked definitely by monuments, extending north of the Monte Cristo Road. Defendant's extension of the fence line to the south of the Monte Cristo Road indicates similar evidentiary weaknesses; he first built the extension south in the early 1940's; it fell into disrepair, when he attempted to reconstruct it, this action was initiated. Each party insists that the boundary line which he claims has been established through acquiescence for a portion of the total distance should be projected for the entire length of its north-sout- h course. Upon a new trial, the court might determine that the boundary is no longer a straight line as each party contends, but that north of the Monte Cristo Road, the boundary is in line with the fences constructed by the parties; and that to the south of the Monte Cristo Road, Cornia Lane marks the The judgment of, the trial court is reversed, and this cause is remanded for a new trial in accordance with this opinion. WE CONCUR: R. L. Tuckett,' J. Allan Crockett, Justice Justice Henriod, Justice, concurs in the result. 12. Fuoco v. Williams, 18 Utah 2d 282, 284, 421 P. 2d 944 (1966). 277-27- The double proportionate measurement is the best example of the principle that existent or known corners to the north and to the south should control any intermediate latitudinal position, and that corners east and west should control the position in longitude. the other hand, prior to any determination that a corner be deemed blilcrated, it is the prerogative of the trial court to review the evidence and determine whether the alleged location of the corner as testified to by the witnesses corresponds in any particular with the original field notes. On : If the boundary dispute in the instant action be resolved on the basis a survey, the primary issue is whether the southwest corner of Section 22 '.-- ! :!: rated or lost. the relocation or of government corners, there is corner and a lost comer; in the former, the investigation is directed toward the determination of its original location; while in the latter, the corner is relocated by a new survey. An obliterated corner may be defined as one where no visible evidence remains of the work of the original surveyor in establishing it. Its location, however, may have been preserved beyond all question by acts of landowners and by :uc memory of those who knew and recollect the true situs of the original monument. In such a case, it is not a lost corner. A lost corner is one whose position cannot be determined, beyond a reasonable doubt, either from original : r!: 3 or reliable external evidence. A lost corner is one which cannot be replaced by reference to any existing data or sources of information, although :t is not necessary that evidence of its physical location may be seen or that o..c who has seen the marked corner be produced. A corner will not be re- -i as lost where it may be located by field notes referring to discoverable In ELLETT, Justice: (Dissenting) I think that the location of the boundary line was for the evidence given and that we should not return the case the trial court under for a new triad. Undoubtedly all of the evidence available has adready been presented, and a new trial would only work an undue and unnecessary hardship upon the parties to this lawsuit. If under the evidence given and findings based thereupon either party should prevail as a matter of law, we should say so. I dissent. The main opinion seems to reverse the case because the triad court did not determine whether a corner was lost or obliterated. The trial court probably believed the statement of this court in the case of Henrie v. Hyer, 92 Utah 530, 70 P. 2d 154 (1937), relied upon in appellant's brief and cited in the prevailing opinion. This court in that case at pages 536, 537, and 538 of the Utah Reports said: a distinction drawn between an obliterated object s. the court observed that if there be some acceptable location, that position will be employed in preference tki rule that would be applied to a lost corner. The court stated: In Reid v. Dunn :vicJ.'ucu of the original .w . . . If monuments are obliterated and undiscoverable, corners should be wherever possible in accordance with natural objects described in the field notes of the original survey. And the proportional method must not be resorted to unless the line cannot be retraced and its corners relocated by reference to natural objects of the field notes and all other prescribed methods fail. Upon tl.p In the instant case, whether the corner were an obliter-ate- d corner or a lost corner the result must be the same. Surveyors, in making resurveys or in searchlost or obliterated corners, may consider extrinsic and material evidence, as well as the field notes, if there is doubt or uncertainty in the field notes, for the purpose of determining the exact location of lost lines or corners of the original survey. . . All emphasis added. . . . ing for or relocating or . In the instant matter there was neither doubt nor uncertainty in the field notes. The respondent called three surveyors to testify as to surveys they had separately made. In determining where the dividing line between the land owned by the parties was, those three surveyors started from different known markers - still in place - and each used a copy of the original survey. Two of those witnesses were graduates from college and had had much experience in surveying. The third witness was not asked if he held a degree from a recognized college, but he was a range technical supervisor for the Bureau of Land Management, for whom he had worked for thirty-thre- e years. These three surveyors found five original government in place, three of which were corner monuments located at markers survey the southwest corners of Sections 16, 28, and 33, and two of which were west quarter corners of Sections 21 and 28. There was ample evidence given to enable the court to locate the boundary as he did. trial court might consider the following: . . T! i' t i.ik of the court, when confronted with an ruled uMtia, uncurtain boundary location and the like, is tv "decide from the data appearing in evidence its approx -position" when the exact spot cannot be found, and "i ... the place at a point where it will best accord with the natural objects described in the field notes as being about it, und found to exist on the ground, and which is least i!. f si stent with thu distances mentioned in the notes and Weaver v. Howatt, supra, 161 Cal. at page 86, iJ. ul page 522. . the two surveyors who testified for the appellant, one had no degree from any college and the other was the husband of appellant's granddaughter. It was the prerogative of the trial judge to weigh the testimony of the witnesses, and he was under no compulsion to believe the testimony of either witness called by the appellant, nor was he compelled to believe that the surveys made by appellant's witnesses were more likely to be correct than were those made by the witnesses called by the respondent. Of 1 each p.trly claims to have established a boundary line by q.iifdcence; this issue was before the trial court, but no findings were made thereon. 7. Kehrrnan v. Diesel Lumber Co., Wis., 204 N.W. 582, 584 ( 1925). H. 70 P. 2d 154 (1937). Henrie v. Hyer, 92 Utah 530, 9. Chandler v. Hibberd, 165 Cal. App. 2d 39, 332 P.2dl33, 141 (1958). 10. Note 6, supra, at page 275 of 20 Cal. Rptr. 11. Chandler v. Hibberd, Note 9 supra, at page 144 of 332 P. 2d. 535-53- ish 17-23- -9, 6, h Cornia Lane travels in a course and terminates in the southerly third of the disputed area at the point where it intersects at a nghangle with the Monte Cristo Road. The Monte CristRoad traversal north-sout- The purpose of all of the surveys was to locate a boundary line between lands owned by the parties - not to relocate either a lost corner or an obliterated corner. Besides, it is the statutory duty of the county surveyor to missing or obliterated government lines and corners U. C. A. 1953). (Sec. The court went upon the land and observed the country round about it, including markers, fences, lanes, etc., and under the evidence presented to him, it is my opinion that he was justified in finding that the dividing line between the properties was the west line of Cornia Lane. I would, therefore, affirm the judgment. I |