#### Mitchell v. Wilson.

1. Boundaries: action to determine: adverse possession. The question of adverse possession cannot be determined in a proceeding under the statute to establish a lost corner.

2. -: -: SUPPLEMENTAL PLEADING AFTER REPORT MADE. In such proceedings, the only issue is as to the true location of the government corners, and as to that issue the court may properly receive evidence, whether pleaded or not, at any time before the final submission of the cause; and so a supplemental pleading, filed after the report of the commissioners, could not change the issue, and, though wholly unnecessary, is no ground for reversing the judgment of the court.

3. -: -: effect of commissioners REPORT. The report of the commissioners appointed by the court in such proceedings does not have the effect of the verdict of a jury, but the court may confirm, reject or modify it.

4. -: -: appeal: evidence. Such proceedings arfe not triahlo *üe, novo*in this court, and the judgment cannot be reversed as being against the evidence, where it is conflicting. *'{In re Harrington,*54 Iowa, 33, followed.

*Appeal from, Harrison District Court.*

Tuesday, December 14.

AotioN to determine tbe boundary line between the S. of 5. E. ¿ of section 31, township 79 N., of range 42, owned *333by the plaintiff, and tbe S. E. i of S. W. ¿ of the sama section, owned by tbs defendant. Erom the judgment the defendant appeals.

*8. R. Cochran,*for appellant.

*L. M. Bolter & Sons,*for appellee.

Seevees, J.

The petition states that the boundary line between the S. ■§ of the S. E. ¿ and S. E. ¿ of S. W. ¿ of section 31, township 79, range 42, is in dispute, because the true location of the half mile or quarter post on the south line of said section cannot be readily determined, and therefore the center of the section is not certainly known. The defendant answered the petition, and commissioners were appointed to make a survey, and definitely locate such boundary line. The commissioners heard evidence, made surveys, located the boundary line, and reported the same to the court, together with the evidence. The boundary line so fixed we understand to be satisfactory to the defendant, and he asked the court to confirm and adopt the same, and the plaintiff moved the court to set aside the report. Neither of these motions was determined. Pending their consideration, the plaintiff asked and obtained leave, against the objections of the defendant, to file a supplemental pleading, which, with amendments thereto, stated, in substance, that a survey had been made of the pi’emises by one Parkins, some years prior to the commencement of this action, and that he had established the disputed corner, and the boundary line, and that fences had been built, buildings constructed, and a highway established, in accordance therewith. The defendant moved the court to strike this pleading from the files. This motion was reserved until the final hearing. A jury was impaneled to determine the question of adverse possession, which was relied on in the pleadings, and certain interrogatories were propounded to the jury, which were answered by them. It should be stated that the plaintiff, upon a showing made, *334introduced the evidence of Parkins, which was considered by the court, although the same was not before the commissioners. The whole case was then submitted to the court upon the report of the commissioners, evidence, and special findings of the jury. The court found and determined that the report of the commissioners should be modified, and the corners and boundary established in accordance with the Par-kins survey. Such being the facts, stated in a general way, we proceed to a consideration of the objections made by counsel for appellant.

I. It is insisted by appellant that the question of adverse possession cannot be considered and determined in this char-i. Botra-DAB-xes: action.to determine: adverse possession. acter of actions. It has been recently so held. „ ±>ut we are unable to see that appellant was m , any respect prejudiced by the action of the court. The finding of the jury was in his favor, and the judgment or decree is not based thereon.

II. It is insisted that the issue formed before the commission is appointed should not be changed after the 2-_._. piemungatter report made. report has been made. This, we understand, refers to the supplemental pleading, and the jggü6 presented thereby. We are unable to see the necessity of the supplemental pleading, nor do we see that the issue was changed. The object of the whole proceeding was to ascertain the boundary line between the lands of these parties. To accomplish this, as the statute provides, a commission was appointed to make a survey, and establish the true boundary. It is only where the location of the government corners cannot be definitely ascertained that a dispute as to a boundary line can possibly arise. If the corner has been obliterated or lost, then evidence of its true location may be heard by the commissioners, and, upon a consideration of such evidence and a survey, the disputed boundary is established by them. Now, if no supplemental pleading had been filed, we think it would have been competent for the court, at least upon a proper showing, to permit the introduc*335tion of any evidence, at any time before tbe final submission of tbe cause, wbicb tended to show tbe location of tbe corners and boundary line. In its discretion, tbe court might set aside tbe report, and make a new reference to tbe same or other commissioners to consider tbe new evidence, together with wliat bad been previously taken, and, if deemed necessary, to make another survey.

III. It is insisted that tbe report of the commission should have tbe force and effect of the verdict of a jury. missioiier°,m" report.*v. Richardson,*58 Iowa, 575, does not support this proposition, as counsel claim. The statute expressly authorizes tbe court to confirm, reject, or modify the report of tbe commissioners. Miller’s Code, (Ed. of 1886,) p. 163. Therefore it seems to us tbe report cannot have tbe effect claimed for it. Tbe commissioners are simply officers of tbe court, appointed for the purpose of aiding tbe court in establishing tbe true boundary line.

IY. Tbe court, upon a consideration of tbe report and all of ■ tbe evidence, reached tbe conclusion that the boundary 4. — ; — : donee!' 6V1 established by Parkins, about twelve years before the trial in tbe court below, and wbicb bad been acquiesced in by tbe respective owners of tbe land, to some extent at least, was tbe true boundary. From an examination of tbe evidence we cannot say that this conclusion is wrong; for tbe case is not triable anew in this court. *In re*Harrington, 54 Iowa, 33.

AeKIRMED.