Docket No. 907
Decided: Tuesday, October 24th, 1893
Opinion: 7 Wash. 205 (1893)
Court: Dunbar1 Court (1893-1894)
Note: We post only slip opinion(s) as published at the time of the decision. Please consult Washington Reports printed volumes for the opinion(s) in their final form. Undetermined votes indicate that the opinion(s) have not been evaluated yet.
PACIFIC CADEAU v. ELLIOTT, 7 Wash. 205; 34 P. 916 (1893).
SUPREME COURT OF WASHINGTON
October 24, 1893, Decided Appeal from Superior Court, Wahkiakum County.
Court: Judgment affirmed.
Counsel: J. Bruce Polwarth, and John H. Smith, for appellants. Thomas N. Strong, for respondents.
Judge(s) DUNBAR, C. J. ANDERS, STILES, HOYT and SCOTT, JJ., concur.
Opinion By: DUNBAR The opinion of the court was delivered by DUNBAR, C. J.--This was an action brought by plaintiffs to establish a boundary line between the north and south halves of the Laban Stillwell donation claim, in Wahkiakum county, owned by plaintiffs and defendants, respectively. There are really no questions of law to be decided in this case, for the proposition contended for by appellants, viz., that the true corner is where the United States surveyor established it, notwithstanding its location may not be such as designated in the plat or field notes, is elementary, and in fact is conceded by the respondents; and it is also undoubtedly true that though neither course, distance or computed contents agree with the monument, yet the monument must prevail. But this presumes the fact that the monument, or actually established corner, is definitely ascertained. If any credit at all is to be given the plats and field notes, the presumption must attach that the corners have been established at the places indicated by such field notes; so that the burden is upon him who disputes their correctness. But where, as in this case, the establishment of the corner as claimed by the appellants does not accord with the field notes of the government surveyor, and does not accord with the section lines in adjoining sections, and will establish the claim in an irregular shape, the proof of such actual establishment must be clear and convincing.
We have examined all the testimony in the case, including the report of the commissioner, and the testimony of appellants' witnesses submitted in court after the filing of the report, and from such testimony are unable to conclude that appellants have established the fact that the stake which they claim to be a monument was a monument made by the government surveyor, and under all the circumstances as shown by the testimony we are inclined to adopt the view of the commissioner, that the crab apple stake which was testified to was placed there and the bearing or witness trees were marked by some subsequent surveyor. Consequently we will not disturb the judgment of the court below on questions of fact.
We think, however, that this case falls plainly under the provisions of title 9, chap. 8, Code Proc., and that an equitable apportionment of the costs in this case would have been an equal division, and as the proposition is now before us for adjustment, the judgment of this court will be that the judgment of the lower court will be modified to the extent of taxing the costs equally between the appellants and the respondents, and as so modified it will be affirmed. The respondents will recover costs in this court.
ANDERS, STILES, HOYT and SCOTT, JJ., concur.