#### Lind, Respondent, vs. Hustad, Appellant.

*September 15*

October *3, 1911.*

*Boundaries: Relocating lost or obliterated corners: Evidence: Trespass.*

1. Bottom land, a spring brook, and a creek, referred to in the field-notes of the original government survey, are “permanent objects” within the meaning of sec. 27 of the Rules of the General Land Ofiice, relating to the restoration of lost or obliterated’ corners.

2. Where three calls of the field-notes for permanent natural objects unite in the relocation of a section corner it cannot be-called a lost corner, but should be relocated in accordance with such calls.

3. Where such relocation of the corner establishes the boundary-line between the parties, evidence of reputation and acquiescence is incompetent to establish the line in a different place.

4. An action of trespass will lie against one who cut and removed a fence built by plaintiff and entered upon land inclosed thereby.

Appeal from a judgment of the circuit court for Barron! county: Epank A. Ross, Circuit Judge.

*Affirmed.*

Action for trespass. At the beginning of the trial the following stipulation was entered into:

“It is stipulated that the defendant *Sever Hustad,*at the-time alleged in the complaint, cut and removed the fence in question, and entered upon a strip of land inclosed thereby and about two rods in width, and that the defendant claims the said fence and strip of land were a part of the northwest-quarter of the northeast quarter of section 13, town 35, range-13, and the plaintiff claims that the same was a part of the-lands described in the complaint, that is the southeast quarter of the southeast quarter of section 12, township 35, range 13; that the respective claims of the parties depend solely upon the true location of the southeast corner of seetion 12, town 35 north, of range 13, and if the corner is as claimed by the plaintiff and his surveyors, then the fence and’ the strip of land was a part of the southeast quarter of said section 12, town 35, range 13 west. It is understood that: *57the plaintiff claims said corner to be at a point about five rods south and eight rods west of the place defendant claims true comer to be. It is further stipulated that the plaintiff was at all times mentioned in the complaint .and is now the owner of the east half of the southeast quarter of section 12, town 35 north, range 13, and that the defendant was at all times mentioned in the complaint and is now the owner of the west half of the northeast quarter of section 13, township 35, range 13.”

It was further stipulated that, if plaintiff was entitled to recover, his damages were $2.50.

The jury found that the southeast corner of section 12 was at the point claimed by plaintiff, and from a judgment entered in his favor the defendant appealed.

Eor the appellant the cause was submitted on the brief of *O. O. é A. B. Ooe.*

Eor the respondent there was a brief by *Kennedy & Tates,*and oral argument by *W. T. Kennedy.*

ViNJE, J.

By a reference to the statement of facts and the accompanying map it will be seen that the only dispute between the parties was as to the true location of the southeast comer of section 12. No stake, bearing trees, pit, mound, stone, or other monument marked the comer. The defendant claimed it was a lost corner and should be relocated by proportionate measurements from known comers, while plaintiff claimed it was only obliterated and could, and should, be relocated from the minutes of the original government field-notes. They contained the following calls:

> Township No. 35 between Eanges 12 & 13 west.

> Chain North between sec. 7 & 12 var. 8° 39 East.

> 2.90 Enter bottom bears East.

> 3.80 Spring brook 10 links wide runs East.

> 7.65 Creek 20 links wide runs S. E.

> Sec. 27 of the Eules of the General Land Office relating to the restoration of lost or obliterated comers provides:

> “The identification of mounds, pits, buried memorials, witness trees, or other permanent objects noted in the field-notes *58of tbe survey, affords the best means of relocating the missing comer in its original position. If this cannot be done^ clear and convincing testimony of witnesses as to the place it originally occupied should be taken, if such can be obtained. In any event whether the locus of the comer be fixed by the one means or the other, such locus should always be tested and confirmed by measurements to known comers.”

> *DEFENDANT LAND RANGE UNE*

> Appellant claims that the calls relating to bottom, “spring brook,” and “creek” do not come within the phrase “or other permanent objects noted in the field-notes of the survey.” We are unable to concur in such claim. Each must be classed as a permanent object within the meaning of the section quoted. True, creeks sometimes quite materially change their course owing to avulsion or erosion, or both. But such changes are the exception, not the rale.

*59There was no evidence in this case to show any change in either the spring brook or the creek. It is apparent that the bottom land conld not have materially changed its location. That there has been no change in any of the three calls is made certain by the fact that the survey of Mitchell shows that each call of the field-notes was answered by the present location of these natural objects.

It was decided as early as *Martin v. Carlin,*19 Wis. 454, that a call for a natural object, such as a river, will control courses, distances, and quantity, and it was therein explained why the rule was not applied to that particular case. “A river, a known stream, a spring, or a marked tree will control as to courses, distances, and quantities.” *Gove v. White,*20 Wis. 425, 432. This rule was reiterated in *Borkenhagen v. Vianden,*82 Wis. 206, 52 N. W. 260. We have, then, a case where three calls of the field-notes for permanent natural objects unite in the relocation of the section corner. Such a corner cannot be called a lost corner. *Pickett v. Nelson,*79 Wis. 9, 47 N. W. 936.

The map shows that the testimony of plaintiff’s surveyor, Mitchell, to the effect that practically no other line than that claimed by plaintiff would meet the calls of the field-notes, is true. The line claimed by defendant would not cross the spring brook at all, while it would cross the creek three times instead of once only as called for by the field-notes. The plaintiff relocated the comer by competent evidence.

Several errors are assigned because the court rejected evidence offered by the defendant. Such evidence related to the location of the corner by reputation, by alleged acquiescence of parties, or by the construction of fences. This court has said: “It is not competent to make a boundary line by parol except when the same is in doubt and unknown.” *Hartung v. Witte,*59 Wis. 285, 299, 18 N. W. 175. And in *Pickett v. Nelson,*79 Wis. 9, 12, 47 N. W. 936, it is stated:

> “It will not do to say that the line was unknown and uncertain because some of the original monuments, placed by the *60government surveyors in tbe first instance to mark tbe corners, were missing, or could not be identified. If tbe field-notes of tbe original surveys afforded means for ascertaining tbe true location of tbe boundary line, that was sufficient.”

Here no impeachment of tbe correctness of Mitchell’s survey was made. That being so, evidence of'reputation and acquiescence was incompetent to establish tbe line in a different place than that called for by tbe field-notes, and its exclusion by tbe court was not error.

A claim is also made that an action of trespass will not lie. Tbe stipulations of tbe parties set out in tbe statement of facts dispose of tbe question adversely to the defendant.

*By the Court.*— Judgment affirmed. •

BauNes, J., took no part.