OCR Text |
Show POOR COPY TUESDAY. OCTOBER 19, 1971 THE DAILY RECORD i : . In The Supreme Court Of The Slate 01 Ulali Theris Cornia, Plaintiff and Respondent, No. 12383 FILED October 15, 1971 v. Ezra Putnam, Defendant and Appellant. L. M. Cummings, Clerk l I ' CALLISTER, Chief Justice: : Plaintiff, alleging ownership of the southwest quarter of the southwest quarter of Section 22, T. 9 North, R. 6 East, Salt Lake Base and Meridian, initiated this action to compel defendant to remove a fence which he had erected allegedly upon plaintiff's land. Defendant responded by answer and counterclaim, asserting his ownership in the southeast quarter of the southwest quarter of Section 22 and contending that the controversy involved the location of the boundary line between the two parcels. Defendant prayed that the true and correct boundary line be decreed by the court. the Upon trial, this matter was heard by the Honorable Lewis Jones; case was under advisement at the time of his unexpected demise. Counsel Honorable Venoy stipulated that the matter be decided upon the record by theDefendant the for appeals. plaintiff. Christoffersen, who rendered judgment n on have one or more in lit lownsnip and you have lii Plaintiff ureas th.ii t. li'T1 e. located . sill .2 Utah 2d 3 3, M M, 1. Stale Koiif Ci. mm. l.i (15 22 ah 1, 158, U9 P. 2d 2. Marsh v. Irvine. 1'.-' Mathitson Chomwit (h in , Ut.'n 2d 275, 2S0, . reo-v- : iin-'ni- , 2-- -t. J adminis-sio- n On appeal, defendant urges that the trial court erred by its of the testimony of witness Harry N. Carlton concerning the survey he conducted of the area. Mr. Carlton, a resident of Wyoming, is a licensed Defendant contends that Mr. Carlton engineer and land surveyor in that State. was not qualified to testify as an expert witness because he was not licensed to act as a surveyor in the State of Utah in accordance with Chapter 22, or Title 58, U. C. A. 1953, which regulates the practice of engineering I land surveying. The qualification of an expert witness is to be determined by the trial judge, and if he determines that a witness by reason of training and experience can assist the jury by giving an opinion on a matter properly before the court, we on appeal should not hold that testimony should be stricken unless such palpable ignorance of the to subject matter is manifested by the witness as indicate an abuse of discretion on the part of the trial judge in allowing the witness to express an opinion in the fiist or in refusing to grant a motion to strike after it place r is given. l Defendant proffers no facts concerning the witness, either as to his lack of training or experience or'as to his palpable ignorance of the subject in permitting matter, to indicate that the trial judge abused his discretion His testimony was Mr. Carlton, as a qualified expert witness, to testify. properly allowed as competent evidence. Defendant contends that the surveys conducted by Mr. Carlton and with the Mr. Moser, plaintiff's surveyors, were not conducted in conformity in its erred the trial court requirements set forth by law; and, therefore,line in accordance with these determination of the location of the boundary surveys. .. 1,1 11 - , ri j nul i.cld notes, the iijci location oj ui i determine''!, even thm.h it im nec issaty to cross ovei wu: .m out ends such that corners. procedure that initially a determination must lie made as to v.hitiii r th. corner of Section 22 was loM nr obliterated. II th- by a double proportional measari must be followed not by plaintiffs surveyors. If the corner were i.d fendar.l's surveyors followed tin- proper proeeduif, that lie should prevail. from lh-- . : it !- Dclc-i-dan- -' t . The trial court found that each party had hired competent surveyors to run surveys to locate the southwest corner of Section 22; the sandstone monument, placed by the government surveyor at this point was missing. the location of the southwest The defendant's surveyors, in corner of Section 22, relied upon the testimony of witnesses and the field notes of the original survey, regarding distances and courses to natural located the boundary line objects, such as, streams. Plaintiff's surveyors monuments by proceeding by courses and distances from original government of Section corner still in place; one surveyor commenced from the southwest of Section 16. 33; the other initiated his course from the southwest corner it The trial court accepted plaintiff's survey as accurate, on the ground that a was based upon corners actually fixed upon the ground by government by defendant constituted surveyor. The court found that the fence constructed north-south boundary line a continuous trespass. The court held that the of Section 2Z southwest the in sections sixteenth two quarter between the north-sout- h was along the west boundary of Cornia Lane, a lane which runs in a Lane direction through the lowest third of the quarter section. (Cornia disin the which Monte Road, Cristo terminates at its intersection yrith the east-we- st course. Consequently, the boundary line puted area runs on an as decreed by the court for the northern two thirds of the southwest quarter would be an approximate projection of the west boundary of Cornia Lane, north of the Monte Cristo Road.) 3 - - : . Defendant's s.u veyo; weie Mr. Peterson and M: . testified they nsc-- the surveyin'1, procedures of the Duiv. mcr.t. D- fi udai.t ml rod. .cud into evidence a pampid-of Lost or Obliler cit.i 'l Corners and Subdivision of i c f Surveyors, 1963 Edition, issued by the United SUte-- He: Interior, Bureau of Land Man?pprrcnt. d i - i j r . 11 Mr. Peterson testified that he obtained a c opy of in. ; notes and township plat. He stated that the original survey.1.' southeast corner cl the township and then worked north ar.d wo ancc with the procedures in the aforementioned pn.rqblet, Mr, made inquiry of local landowners a? to the location of iho of Section 22. Osio Cornia arid Carter Cornia, age 77 rind indicated that the monument had been located in a p'n'.u.r entlv evi ;t a t'em corner. (These two men also testif.c-- v : it. i.i - . i;v: 20-2- 29-2- monument Mr. Moser commenced his survey at the government went northerly and located located at the southwest corner of Section 33; he determined a posihe the southwest and west quarter corners of Section 28; of Section 28. He proceeded tion which he accepted as the northwest corner monuments east along the north line of Section 28; he did not find28.government the south-wes- t also which is of Section at the north quarter or northeast corner the line becorner of Section 22. He continued east 1320 feet to locate tween the two sixteenth sections. at the southwest corner of Mr Moser admitted that he did not arrive of the original surveyor, as he estabSection 22 by following the field notes Sections 27 and lished it In 1875, the original surveyor awent north ofbetween 80 .and set the chains 33. 34 for distance 28rom the corner of 27, 28. corner to Sections 21, 22, 27, 28. He then government monument for the line at line until he intersected the north-sout- h proceeded east on a random established corner of Sections 22, 23. 26. 27. chains at the previously 80j50 , . r I.fr. Peterson then used original survey data to ...1 corner were in fact Joi ated .t place indicated ti.u c from measurements the He checked of relatives plaintiff. c:is the and notes in field the compared natural monuments cited and south. altoi;.; followed this procedure to the north, east the south quarter comer of Section 22, which, accordion to the t" was o:i the west bin.'-- , of Twelve1 Mile Creek; it had ciis a j.y ttc. observe '1 an old fence that could possibly tie into the quart-- : . located' the area described in the field nou-proceede d east 2 of Sections 22, 3, 26. 27. Mr. Peterson testified that all. rvients irdicatcd th; the line might be farther west than c by the witnesses n .i that he would not move it farther " thnotes indicate field isthe original Mr. Moser heca. h n would from the branch of a creek: the Moser survey crc-ecud low lauds. v . e-- r aces to L-- He d : .v . r ! i i : . ; : rncr sure- - C . 1. 3 u-- i 1 the k est co: iC r Mr. Peterson testified lh.-- t in his opinion the t . . : r, tJ .itt-a of the fences: location at the intersection i r S. of Mr. Peterson was of the. opinion that the south quarter our j ho i of the r.rci-1or because of erosion was on the v.' s! - : would be a distance of 270 feet f rom the section corner 'v j to loiT.to !!. : or. uv. ri: mi.--.' e Using th-'- s:ni-.li:: between the quarter orr.er and section corner, he deten v.i H'l! teenth ci me r w - 1 2 feet west cf the fence line reconstru : t ard which prec: oit '.I d ihe ms fa. v ti: n. However, Mr. ' l" lim too actual would ccnsid It '( the opinion tbit . v f a ol c eu e lor :iiiv ht hoc re iso ,ts years. m-Ji- o , i.i . : L - i I ; . ! : div-idin-e i . i ! i f 1' Mr. Johnson, test;-:: ; nut a it an 22 was ohlitor of corner Section mined tint the southwest .. ;n on 'd i w.-.J Mr. Peterson's. to to Uin'oiiv fii:!l tr .lost corn- r. w no did 'se oi comply further testified th,:i Mr. Mover's procedures I .':id lo.t 'or:. or1., n.1!''- i 'thor to. establish the Pureoti cate an "blitiir.ito '. erne r. TV! sc c end end T - :,ur eys-r- . . er- s ; ; c-- - t I he loealou of til e; sixli -- nt:1. corner m tin I'ist n.r on the lo. ation of tin uirm r and south quarter 3. The m ensu r eno nt made by it.e i iianoil survey r, Im by the preseii'. siirounr, ,im! t!ie sp. iii' d distance el : l:n- dlslo n i. pOTtioniup tl :i:'1 to d". i e : since by law Tiie :aoi Corners : the-- sivto.-nt:- d c t in; r. m.,l l i e. ated rmdwov hil '.f "jicstor.'il ion ot j " iv':is provides at p..g,e 2: loine: . n h-- i . ol .ie rrilimiuaiy 1. 1 is loi , to ll.e niibdivisieui ol qua rt e i ii-th- corneif. will h the section oi.d o;.., established at nmuls midway between of the section, section coriurrs, oni the center rid, qunrlcr-qu- a cir sixleenlh-sectio- ii ... corm. r. or sixteenth-sectio- n !l hues the center as been established directed above, bo run straiglit between epp.; it' quarter section will or sixteenth section corners mi ii ing quarlcr-quo.rte- r, section boundaries. The intersection of the lines llui1- .si determine the legal center of a quarter section. The quarter-quarte- r, -- cause must be reversed for 1 , 1 i mw triai. Judge Jones ' : n 22, il i. !.fu- - L' - Suh-divisio- 21. n 1 . r-- vI pi 'J Mr. Carlton located the government monument at the southwest monucorner of Section 16, he established a line to the south and located the 1 and Sections ments marking the quarter comers between Sections a of his temporary corner setting 8, from whence he determined that He proceeded east for at the northeast corner of Section 28 was correct. a distance of 80 chains (one mile), where he found no cornerstone marking same line for an the southwest corner of Section 22. He continued on the line between additional 1320 feet, at which point he determined the boundary 22 was located. of Section the sixteenth sections of the southwest quarter and distances; he did Mr. Carlton used the township map to check bearings corner. not use the field notes to check the location of the - Ct- I ; ( . - u. l . " |