Braun v. Montello Granite Co.
Braun v. Montello Granite Co.
Opinion of the Court
As was said by the trial court, the crux of this litigation is the problem as to the correct location of the land intended to constitute the plat. The case is not without its difficulties. There is no considerable .conflict in the evidence. The south line of the tract of land upon which the plat was imposed is a section line.' Both the southwest corner of the southwest quarter of the southeast quarter and the southeast quarter of the section are well established points. There is no dispute as to the location of the boundaries of the tract of land (the southwest quarter of the southeast quarter and the southeast quarter of the southeast quarter) as described. The entire problem relates to the exterior boundaries of the plat. The trial court assumed that the angle made by the line of Columbus avenue and the western boundary of the plat was a right angle. If that fact be assumed, the conclusion of the trial court follows irresistibly as to the ownership of the particular property in dispute, being the 5.78 acres before referred to, and it was not necessary for the trial court to find and he did not find where the intersection of Barstow street' and Eastern avenue should be located. There is no dispute that if the plat be laid out upon the ground, having the intersection of Barstow street and Eastern avenue on the south line of the tract at substantially the eighth post, following the distances indicated upon the plat, that Eastern avenue will not reach the north line of the tract within approximately 356 feet. It'must therefore appear to be equally certain that if it be laid out upon the ground so that the north line of the plat will coincide with the north line of the tract of land, the intersection of Bar-.stow street and Eastern avenue will be some 300 feet north of the south line of the tract. It is also undisputed that if
If the location of Barstow street or a road corresponding thereto at. the time of the recording of the plat had been established by the evidence, the solution of the problem would be comparatively easy, but we find no evidence to that effect in the record. There is evidence that' it had existed for more than thirty years. Between that time and the making of the plat there had elapsed a period of eighteen years or more. If the location of the highway had been established at the time the plat was recorded, it might answer the calls of a monument and SO’ fix the location of the plat. There is no dispute that the plat cannot be laid out upon the ground as indicated in Exhibit 8 without changing the location of Clay street, Polk street, and the size and exterior boundaries of every.lot on the plat lying east of Groton street. In order to lay it out, the distance from the northeasterly point of the plat as indicated on the Corning survey to the north line of the forty would have to be apportioned, and in apportioning it the angles of the streets and the size of the lots would be radically and materially changed so that the plat would no longer represent a picture of such a situation. It therefore seems plain that the problem is to determine whether or not it should be laid out so that Barstow street coincides with the present highway, or substantially so, or whether it should be laid out so that the line of Columbus avenue coincides with the north line of the tract. Upon either theory the picture made by Exhibit 8 is not correct because in that picture the southwesterly line of the plat corresponds with Barstow street and the northerly line of the plat corresponds to the north boundary line of the tract — an impossible situation when it is attempted to lay out the plat upon the ground.
Many authorities have been cited to our attention, none of which meet the situation disclosed by the evidence in this case. Most controversies deal with the location of tracts within the exterior lines of the plat and not .with its exterior lines. Our conclusion is further strengthened by the fact, although it is not dependent thereon, that the fence erected by Clara L. Power was permitted to remain nearly twenty years undisturbed, and by the further fact that Phillips in his survey found a monument in the shape of an iron pipe which marked the northeasterly corner of the plat substantially as located by Phillips and Corning, although it did not appear hy whom the monument was erected; and further by the fact that Barstow street as traveled corresponds sub stantially in location with Barstow street as indicated on the Corning arid' Phillips survey; further, that when laid out upon the ground, as indicated in the Corning survey, it is a practicable, workable plat, whereas if it is laid out so that •the north line of the plat will correspond to the north line of the tract, then Barstow street departs from the traveled highway and would be located on the face of the hill or bluff — a most unlikely location for a public street.
It was contended by the defendant that it and its predecessors in title had been in possession of the disputed tract under claim'of title, but the jury found against the defendant on that issue.
We conclude, therefore, that the court was in error in holding that the plaintiffs were not the owners of the tract
By the Court. — Judgment of the circuit court is reversed, and cause remanded for further proceedings according to law not inconsistent with this opinion.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.