Demary v. Carlson
Demary v. Carlson
Opinion of the Court
In 1874 Mr. Tyler acquired a pre-emptive title to the south half of the southwest quarter and the southwest quarter of the southeast quarter of section 8, township 13 north, range 9 west of the sixth principal meridian, in Howard county. The government survey of the section was made in 1867. In 1876 Robert Harvey, county surveyor, re-established the quarter corner on the southern boundary of the section, and in doing so followed the directions indicated in the field-notes of the government survey. This resulted in locating the corner about six rods north of a direct line between the southeast and southwest corners of the section. In 1877 Tyier transferred his pre-emption to Christopher C. Demary, who has ever since occupied the premises as a family homestead. In the spring of 1885 Demary employed Thompson Mc-Nabb, the then county surveyor, to run the south line of section 8 with the view of establishing thereon a public road. McNabb, instead of following the government field-notes, found the government corners of the section and ran a straight line'between them. On this survey the road, without any affirmative action on the part of the public authorities, was opened for travel, and along its northern line Demary planted trees and set out an Osage orange hedge. In 1894 the appellees, having conceded jurisdiction in such matters, were proceeding to open a road along the line of the Harvey survey, when appellant brought this action against them to obtain a perpetual injunction. The issues joined were tried to the court and a judgment rendered in favor of the defendants. The plaintiff brings the record here for review by appeal.
There is no question of estoppel raised by the pleadings, and, since the county board had undoubted authority to open all section lines for use as public roads, the only question in controversy is the true location of the south line of section 8. The finding of the trial court in favor of the defendants is sustained by sufficient evidence and
Affirmed.
Reference
- Full Case Name
- Christopher C. Demary v. Jens A. Carlson, County Commissioners of Howard County
- Status
- Published