#### Brew, Appellant, vs. Nugent and another, Respondents.

*September 10*

September *29, 1908.*

*Boundaries: Evidence: 'Weight and sufficiency: Original monuments’: Courses and distances: Old fences: Instructions to jury.*

1. In controversies as to the location of corners or boundaries of lots or blocks in platted lands, tbe original location of monuments must prevail over tbe courses and distances marked on tbe plat.

2. If tbe monuments bave disappeared tbeir original location is to-be determined by tbe best evidence available; and in sucb case-location of tbe disputed points by means of measurements by courses and distances is evidentiary only, and its weight depends upon circumstances.

3. Where tbe original markings of a block bad been removed many years before tbe controversy as to tbe south boundary line of a lot arose, evidence of tbe construction of a fence designed to-be on *the*north line of the lot so soon after the original survey as to render it probable that the monuments were then in place or their location readily ascertainable, and evidence of acquiescence in the location of such fence for some thirty or forty years, was competent and, with other evidence, was sufficient to warrant the conclusion that the fence was properly placed, notwithstanding evidence of a surveyor to the contrary based on measurements from supposedly original monuments in other blocks.

4. Instructions to the jury in such case directing them to give primary and controlling evidentiary effect to the old fence line if they were satisfied that when built it accorded with the original survey, and calling the jury’s attention to the undisputed facts and the testimony on the subject, are *held*not to have given undue significance to the old fence line.

*337Appeal from a judgment of the circuit court for Crawford county: Geoe&e ClemestsoN, Circuit Judge.

*Affirmed.*

Ejectment to recover a strip of land two feet on the east side, seven feet on the west side, and 150 feet long as a part of lot 12 and the north one-third of lot 17, block 11, of the Union plat of Prairie du Chien. The dispute was as to the location of the south boundary line of lot 12 and north one-third of lot 17.

There was evidence to this effect: A fence, built about the year 1863, displacing a fence previously built, was designed to be located on the north line of lots 12 and 17. None of the original monuments placed to mark the corners of block 11 had existed for many years before the controversy arose. A fence was erected in 1884 fifty feet south of the north fence, and the two fences were regarded by all parties concerned from the time they were built till about the time of the commencement of the action as marking the north and south boundary of lot 12 and the north one-third of lot 17. There was no proof as to whether the fence displaced as aforesaid was built before or after the platting of the land, which occurred in 1856, and no proof as to what efforts the person who built the fence in 1863 made to locate it, though he testified that he built it on the line as near as he could. The general effect of the evidence was that if the fence erected in 1863 was properly placed, the disputed premises were south of the south boundary of plaintiff’s land and within the boundaries of defendant’s land. Measurements made by a competent surveyor, from monuments supposed by him to be originals set to mark the corners of other blocks than the one in question, located the north line of plaintiff’s premises sufficiently south of the fence line of 1863 to show that the south line of such premises was south of the strip of land in dispute and thus indicate that such strip was the property of the plaintiff. There was evidence of some cir*338cumstances corroborative of tbe claim tbat tbe 1863 fence was correctly located, as well as evidence of circumstances to tbe contrary. Tbe cause was submitted to tbe jury so as to turn on whether tbe old 1863 fence was, correctly placed or not. Tbe verdict was in favor of tbe defendant and judgment was rendered accordingly.

*Alexander Athey,*for’tbe appellant.

*J. P. Evans,*for tbe respondent.

Maeshall, J.

Tbe following propositions are affirmed and submitted by appellant’s counsel as grounds for a reversal: (1) Tbe verdict and finding tbat tbe fence as constructed for tbe north boundary of lots 12 and 17 some thirty or forty years before tbe controversy arose was properly placed is not supported by any credible evidence. (2) Tbe court in instructing' tbe jury gave prejudicial significance, as evidence, to tbe location and maintenance of tbe fence referred to. We will consider such propositions briefly.

It is the settled law tbat in controversies as to tbe proper locations of corners or boundaries of lots or blocks in platted lands tbe original location of monuments must prevail, regardless of whether tbe same coincide with the courses and distances laid down on tbe plat, and tbat in determining such locations if such monuments have disappeared they must be established by tbe best evidence tbe nature of tbe situation is susceptible of. So, in such circumstances, where careful measurements by courses and distances would presently locate tbe disputed points is not controlling. It is evidentiary only, and of controlling or little or no weight according to circumstances. *Nys v. Biemeret,*44 Wis. 104; *Lampe v. Kennedy,*49 Wis. 601, 6 N. W. 311; *Racine v. J. I. Case P. Co.*56 Wis. 539, 14 N. W. 599; *Racine v. Emerson,*85 Wis. 80, 55 N. W. 177; *Madison v. Mayers,*97 Wis. 399, 73 N. W. 43; *Galesville v. Parker,*107 Wis. 363, 83 N. W. 646; *Smith v. Beloit,*122 Wis. 396, 100 N. W. 877; *Pereles v.*
      *339
      *Gross,*126 Wis. 122, 105 N. W. 217. Failure to fully appreciate the effect of sucb decisions might well lead one who relies on mere measurements from monuments supposed to have heen set in making the original survey to mark comers of lots or blocks other than the ones in question, to lose patience, as counsel for appellant seems to have done, because of evidentiary effect inconsistent therewith being given to the location of ancient fences and long-continued occupation with reference thereto and other circumstances.

The original markings of the block in question having been removed, as they unquestionably were, many years before the controversy arose, the evidence as to the construction of the fence designed to be on the north line of lots 12 and 17 at a time so near that of the original survey as to render it quite probable that they were then in place, or their location readily ascertainable by a person of ordinary intelligence and experience, and the evidence of acquiescence in the location of such fence for some thirty or forty years, was competent, and at least with other evidence offered and received, particularly evidence that a stone existed at the easterly end of such fence some years after it was constructed, which people regarded as a landmark, was sufficient to warrant the conclusion that such old fence was properly placed and the disputed boundary fifty feet south of it, notwithstanding the very positive evidence of the surveyor, who, by his measurements from monuments located some distance from the vicinity of the lost corner, supposed by him to he monuments set in making the original survey, supported appellant’s contention. In such a case such circumstantial evidence may have so much greater probative force than mere measurements by courses and distances as to prevail over the latter as matter of law, as indicated in some of the cases cited.

What has been said perhaps sufficiently answers the contention of counsel that the court gave unwarranted significance to the circumstances referred to. The jury were *340merely informed, as tbe fact was, and is not disputed by counsel, tbat, if tbe ancient fence wben built was correctly placed witb reference to tbe original monuments marking tbe north boundary of tbe block in question, tben tbe line and corner so indicated should prevail over tbe one indicated by tbe surveyor by measurements from distant monuments supposed to have been placed to mark tbe corners of other blocks. Tbat is, under tbe circumstances, primary and controlling evidentiary effect was directed to be given to tbe old fence line, 'in ease tbe jury became satisfied by a preponderance of tbe evidence tbat wben tbe fence was constructed it accorded witb tbe original monuments set on such line; otherwise primary and controlling effect was directed to be given to tbe measurements made by tbe surveyor, tbe attention of tbe jury being called to tbe undisputed fact tbat tbe fence was constructed so soon after tbe land was platted as to render it reasonable to suppose tbat some of tbe monuments indicating the true line were still in place, but calling attention to tbe circumstance tbat tbe person who built tbe fence merely testified tbat be ascertained tbe line as near as be could, not being interrogated on either side as to what steps be took in tbat regard.

We are unable to discover tbat tbe court gave tbe undue significance to tbe old fence line claimed by counsel. It was fairly left to tbe jury to determine from tbe whole evidence whether tbe fence was built so as to accord witb tbe original survey, witb instructions tbat, if they determined it was, from a preponderance of tbe evidence, tbe finding would be controlling, since tbe disputed strip was by tbe uncontro-verted evidence on defendant’s side of a line located at tbe proper distance from such old fence line. Tbat was certainly correct, and tbe fact tbat the jury were, witb considerable particularity, instructed in tbat regard, so as to leave no room for them to proceed on any false theory, is commendable rather than subject to criticism.

*By the Court.*— Tbe judgment is affirmed.