#### Anderson, Respondent, vs. Huebel, Appellant.

■ *November 11*

November 26, *1907.*

*Judgments: Gorreetion on appeal: Jurisdiction: Boundaries: Agreement as to survey: Surveys: Oonelusiveness: Subdivision of section.*

1. A judgment which establishes the boundary between the W. % of the N. W. % and the K % of the N. W. % of section 6 as commencing 20.21 chains east of the northwest corner of the section and extending thence south to the quarter-post on the south line of the section, is incorrect, and such judgment cannot be corrected on the theory that the trial court by mistake used the words “quarter-post” as meaning “eighth-post,” where the record fails to locate the eighth-post with sufficient definiteness, and another conclusion is permissible.

2. Where parties having a dispute concerning a boundary line agree to have the same located by a designated surveyor and to abide by the location so made, and it is sought to hold the parties to that agreement without reference to the correctness of the line so located, it should appear that some definite survey was made and made in a manner approximating the proper method of making a survey, that it was not a mere random or experimental line, and that the true line could not be readily located or ascertained, or else that the parties acquiesced in and recognized the line so located.

3. If the survey made by the general government and the field-notes thereof afford sufficient means to enable a competent surveyor to locate a given line, that line cannot be said to be doubtful or uncertain.

4. In an action for trespass to real property involving the location of a boundary line, the evidence, stated in the opinion, is *held*insufficient to establish an agreement to abide by a survey made by a designated surveyor whether right or wrong.

5. The proper subdivision of section 6 of a government township is in conformity with the rules laid down by the General Land Office in its circular of March 14, 1901.

*543Appeal from a judgment of tbe circuit court for Sauk county: E. Eat SteveNs, Circuit Judge.

*Reversed.*

Tbe appeal is from a judgment rendered in an action for trespass to real property, involving tbe determination of tbe location of tbe boundary line between tbe parties. Tbe plaintiff owns tbe W. -£ of tbe N. W. ¿ and tbe defendant tbe E. 4- of tbe N. W. of section 6, township 13, range 3 E. A road running east and west crosses tbe quarter-section a short distance south of the north section line, and from this road north there is a road two rods wide running between tbe lands of tbe parties, but from this east and west road south tbe lands of tbe parties abut upon this disputed line. A special verdict was returned by tbe jury as follows:

“(1) Did tbe parties agree to accept tbe line as determined by Mr. Sobrante as and for their boundary ? *A.*Yes.' (2) Did the survey of Mr. Hulburt correctly locate tbe line in question according to the original government survey? *A.*Yes.”

Plaintiff's damages were then found to be $4 and defendant’s damages $20. Tbe court ordered judgment for tbe plaintiff for $4 damages and “that tbe east boundary of tbe W. -J of tbe N. W. of section 6, town 13, range 3, intersects the north line of said section at a point 20.21 chains east of the northwest corner of said section 6, then extending due south to tbe quarter-post on the south line of said section.” Tbe judgment, however, awarded costs to tbe defendant for tbe alleged reason that tbe trial of tbe cause did not involve the title to land and tbe recovery was less than $50. Tbe judgment follows tbe order for judgment above quoted.

Eor tbe appellant there was a brief by *Barney & Price*and *James A. Stone,*and oral argument by *Mr. PL. W. Barney*and *Mr. Stone.*

Eor tbe respondent there was a brief by *Orotophorst, Evans & Thomas,*and oral argument by *E. A. Evans.*

*544Timlin, J.

1. It must be obvious that the boundary fixed by the Judgment between the W. ^ of the N. W. ¿ and the E. of the N. W. ¿ of section 6, commencing about twenty chains east of the northwest comer of the section and extending thence south to the quarter-post on the south line of said section, is incorrect. The verdict contains nothing from which we could correct this, and it was proposed on the oral argument that we look into the evidence and find that the words “quarter-post” are used in mistake, meaning eighth-post, and that this court should correct the judgment accordingly. Rut we cannot do this, for the reason that this would take us beyond the boundaries of the quarter-section in question, and the evidence does not seem to us sufficiently clear and undisputed to enable us to determine as matter of law that no other conclusion therefrom is permissible, nor is the eighth-post, which we are asked to substitute for the quarter-post, described in the judgment, located with sufficient definiteness.

2. The judgment of the court below is also challenged because it holds the defendant concluded by a boundary line practically conceded and actually found not to be the true boundary line between his land and that of the, plaintiff. This is upon the ground that, the boundary line being in dispute, the plaintiff and defendant agreed to have the location of the same ascertained by the surveyor, Schranke, and to abide by that location. Mr. Schranke was on the stand as a witness and testified that he made the survey of the boundary line referred to in the second question of the special verdict as the survey of Mr. Hulburt. He does not describe any other survey or attempt to uphold or justify any other survey. It is in evidence by mere reference to the fact that Schranke did make a survey of a line between the parties on or about August 14, 1905, but no description of this survey and no showing that it was completed or claimed by Schranke to be correct or his .final effort, and of course by *545tbe second finding of tbe jury settled to be incorrect. Where parties having a dispute concerning a boundary line agree to have tbe same located by a designated surveyor and to abide by tbe location so made, and it is sought to bold tbe parties to that agreement without reference to the correctness of tbe line so located, it should appear that some definite survey was made and that it was made on something approximating tbe proper method of making a survey, and that it was not a mere random line or experimental line, and that tbe true line could not readily be located or ascertained, or else that tbe parties acquiesced in and recognized tbe line so located. All of this proof is absent from tbe case at bar with reference to tbe first Schranke survey. Nor do we think there was sufficient evidence aside from this to bold tbe parties bound to the first survey of Mr. Schranke. In *Pickett v.*Nelson, 79 Wis. 9, 47 N. W. 936, it is held that if tbe survey made by tbe general government and field-notes thereof afford sufficient means to enable a competent surveyor to locate tbe line, tbe line could not be said to' be doubtful or uncertain, and *Peters v.*Reichenbach, 114 Wis. 209, 90 N. W. 184, approves this ruling. In *Parkinson v. McQuaid,*54 Wis. 473, 11 N. W. 682, tbe agreement was in writing and specific, but tbe court intimated that that contract would bind tbe parties unless tbe contract was repudiated by one or more of them before tbe full completion of tbe surveys made in pursuance thereof. Such an agreement as here attempted to be described, if made, would be essentially an agreement to.abide by something which was not and could not be properly termed a survey.

3. We find no other sufficient evidence of an agreement to abide by tbe so-called first Schranke survey. Tbe alleged agreement between plaintiff and defendant is -said to have occurred in tbe presence of Charles Wilkinson, the town supervisor. He happened along and saw tbe defendant setting bis fence posts out in tbe road, — -the road running a short *546distance northward between the lands of tbe parties. He later pulled out tbe posts set by tbe defendant and threw them over alongside tbe fence and forbade tbe defendant to set bis posts in tbe road, and defendant said to Wilkinson that be was not able to do tbe surveying in order to ascertain tbe line, and that if somebody else would go in and pay half be would pay tbe other half. Plaintiff said be would pay all that it cost over $10. Defendant said be would move bis fence, and plaintiff said be would move bis fence on to tbe line. Wilkinson gave *Huebel*Schranke’s name and be wrote it down. This manifestly bad relation to tbe road running north. Plaintiff’s evidence is not much more definite. He says that tbe defendant was setting posts out in tbe road and going to move bis fence over into the road when plaintiff bad a conversation with him, and tbe part of that conversation which is supposed to constitute an agreement is that tbe defendant told Wilkinson, if somebody would stand half of tbe expense of surveying, be, the defendant, would stand tbe other half. Plaintiff then said that be would stand half of it and they would survey it and that would settle tbe trouble with tbe line. Both of them said after they bad tbe line established they were to put their fences on it and would not have trouble any more. Tbe defendant gave bis evidence first as an adverse witness in answer to a cross-examination, and this naturally made tbe evidence somewhat unintelligible. But be agreed with tbe other two witnesses above mentioned up to tbe time that *Mr. Anderson*spoke up and said be would stand half of it in order to have this line settled, added some more details to it, but denied the existence of an agreement to put bis fence on tbe line so established unless be got bis eighty acres. He admitted, however, that be and plaintiff agreed to set tbe fences on tbe line that Mr. Schranke made. This is entirely consistent with tbe belief on tbe part of tbe defendant as well as on tbe part of tbe plaintiff, very commonly entertained, that a survey would locate tbe line with *547absolute certainty, and it falls short of an express agreement to abide by the survey whether right or wrong. It contains no implication to that effect, and there was practically no acquiescence in the line of August 14, 1905.

4. The boundary line between these parties must be very easy of ascertainment by a survey made conformably to the rules of the circular of the General I^and Office of March 14, 1901. According to these rules the quarter-post upon the north side of the section in question should be established, and according to these rules the center of the section ascertained and the quarter-post on the west side of the section established. We understand that the east and south quarter-posts can be located. There then remains only the proper division of the U. W. J, without carrying the division line between the east and west halves of this quarter outside of that quarter-section. It is unnecessary to here rewrite those rules. A copy of them is attached to and made a part of the bill of exceptions, and the survey in question can be made with little expense and comparative accuracy.

*By the Court.*— The judgment of the circuit court is reversed, with costs, and the cause remanded for further proceedings according to law.