#### Lewis, Appellant, vs. Prien, Respondent.

*November 20*—

December *10, 1897.*

(1) *Court and jury: Directing verdict.*(3,3) *Boundaries: Locating lost corner: Evidence.*

1. A court is not warranted in directing a verdict unless all the evidence produced, giving it the most favorable inference it will reasonably bear, and admitting that it establishes all that it tends to establish, would, not sustain a verdict for the other party. The fact that the evidence preponderates one way so strongly that it would become the duty of the court to set aside a verdict to the contrary, does not warrant the court in taking the case from the jury.

3. The question being as to the original location of a stake marking the corner of a lot, proof that the measurements from the nearest known original stakes on the same line, or points established as correct according to the original survey, reached a location for the disputed corner consistent with that claimed by one of the parties, is admissible in corroboration of her evidence respecting the former location of the stake.

3. The proper method of procedure in locating a lost exterior corner of an inside lot in a block is to start at the nearest known point on one side of the lost corner on the line on which it was originally established, measure to the nearest known corner on the other side on the same line, and, if the length of the line is in excess of that called for by the original survey, divide it between the tracts connecting such two known points, in proportion to the length of the boundaries of such tracts on such line, as given in the survey. To establish such lost corner by measuring from a corresponding lot comer on the other side of the block, parallel with the opposite side of the lot, to the intersection with the boundary of the block in which the lost corner is located, is erroneous.

Appeal from a judgment of the circuit court for Dane county: E. G. SiebecKER, Circuit Judge.

*Affirmed.*

Action of ejectment. The correct location of the south boundary line of lot 8, block 4, of Brooks’ addition to the city of Madison, was the disputed question, and that turned on the proper location of the southeast corner of the lot. *88The following is a diagram of the block, with the property owned by the respective parties and the disputed land designated thereon:

At the close of the evidence there was a motion by plaintiff’s attorneys for the direction of a verdict in his favor,, which was denied and the ruling excepted to. The case was submitted to the jury under instructions to which no exception was taken. The finding was in favor of the defendant. Plaintiff’s attorneys moved the court to set aside the verdict and grant a new trial, which was denied and the ruling excepted to. Judgment was rendered in favor of de* fendant and plaintiff appealed.

Por the appellant,there was a brief by *Keyes*& *Shuttle-worth*and *Q. E.*Roe, and oral argument by *Mr. Roe.*

Thejr contended, *inter alia,*that all the corners of lot 8 except the southeast corner are fixed by the original surveyor’s stakes. Prom these monuments the law requires that the disputed line should be established. To fix such line it is only necessary to continue the south line of lot 16 from the southeast corner of that lot eastward in a straight line. Reference to. *89the plat shows clearly that the south line of lot 8 is a continuation. of the south line of lot 16 and parallel with the-north line of lot 8, which is merely a continuation of the north line of lot 16. The same plat also shows the disputed line to be at right angles with the east boundary of lot 16, and the location .of the surveyor’s stake at the intersection of these lines is shown without -dispute. Under such circumstances the location of the disputed line by the method adopted by Dodge is the only correct one. *.Marsh v. Mitchell,*25 Wis. 706; *Fleischfresser v. Schmidt,*41 id. 223; *State v. Schwin,*65 id. 207, 215; *Piclcettv. Nelson,*79 id. 9; *Pernam v. Wead,*6 Mass. 131; *Grier v. Pennsylvania Goal Go.*128 Pa. St. 79; *Ferguson v. Bloom,*144 id. 549; *Thornberry v. Churchill, 16 Am.*Dec. 125; 4 Am. &.Eng. Ency. of Law (2d ed.), 778, S05, and notes.

■Eor the respondent there was a brief by *Olin <& Butler,.*and oral argument by *H. L. Butler.*

Ma-rsttat.t., J.

Did the court err in 'refusing the motion to-direct a verdict for plaintiff? That depends on whether the evidence was all one way to the effect that when the original survey was made the disputed corner was established and the stake set at the point claimed by appellant. The invariable rule governing such cases is too well known to need.more than a statement of it here, were it not for the fact that the force of such rule does not appear to be appreciated by the learned counsel for appellant. When a motion- is made to direct a verdict for one party, the court is called upon to say, taking' all the evidence produced, giving thereto the most favorable inferences it will reasonably bear, and admitting that it establishes what it tends to establish, whether it will sustain a contrary verdict. If so, the motion must be denied. *Leiser v. Kieckhefer,*95 Wis. 4; *Lawrence University v. Smith,*32 Wis. 587; *O'Brien v. C. &*N. *W. R. Co.*92 Wis. 340; *Dirimple v. State Bank,*91 Wis. 601. The doctrine that obtains-*90in some jurisdictions, that where the evidence preponderates so strongly one way that in case of a verdict otherwise it would be the duty of the court to set it aside and grant a new trial, a verdict should be directed, has not obtained a ■foothold here. The rule of this court is in accord with the weight of authority on the subject, including that of the federal supreme court. *Elliott v. C. M. & St. P. R. Co.*150 U. S. 245; *Schofield v. C., M.*& *St. P. R. Co.*114 U. S. 615; Delaware, *L. & W. R. Co. v.*Converse, 139 U. S. 469; *Aerkfetz v. Humphreys,*145 U. S. 418; *Texas & P. R. Co. v. Cox,*145 U. S. 593. Fuller, C. J., in the last case cited, states very tersely the rule, iterated and reiterated by this court, thus: “The case should not be withdrawn from the jury unless the conclusion follows as a matter of law from the evidence, that no recovery can be had upon any view which could properly be taken of the facts the evidence tends to establish.” So it is said that the jury, in all cases where there may reasonably be opposing inferences from" the evidence, are the exclusive judges to weigh such evidence and draw the proper inference.

As before intimated, the only justification for discussing at so much length the familiar principle above referred to, is that counsel for appellant, in support of their contention that the trial court erred in denying the motion to direct a verdict, do not appear to claim there was no evidence in opposition to their theory, which, if believed, would sustain an opposite -theory, The most that is claimed, apparently, is that there was not much such evidence. True, the evidence ■on the part of the plaintiff was very positive and clear that the southeast corner stake of lot 8, as. it stood at the time of the trial, was in place where located by Douglas, who made the original and governing surve}^ and the evidence tended strongly to show that the defendant’s conduct for years after she purchased and took possession of her property-, was more ■consistent with plaintiff’s claim as to the true boundary line *91than with the opposing claim upon which she relied. But defendant testified that the stake, when she purchased, was upwards of a foot further north than where plaintiff sought to establish the true corner; that subsequently it was removed, and later set in the location alleged by plaintiff to be the proper place, and there was considerable corroborating evidence to the- same effect. It was conceded on both sides that the original location of the stake would govern if it could be ascertained, whether consistent with the measurements noted on the plat or not; but as to such location the evidence was squarely in conflict. If the place where plaintiff’s evidence tended to prove the stake was originally set was in accordance with the truth, then the eaves of defendant’s house projected over the boundary line onto plaintiff’s property about four inches. If the place where defendant’s ■evidence tended to prove was the original location of the stake was in accordance with the truth, then there was no encroachment by defendant upon plaintiff’s premises. Without taking time and space to give the evidence in detail, enough has been said to show generally that there was evidence tending to sustain each of the opposing claims, and yet the evidence was so in conflict that a jury might properly say that they could not determine therefrom, with reasonable certainty, where the stake was originally set, and might properly proceed to re-establish the corner from the evidence, under the rules governing the establishment of lost corners. So the motion to direct a'verdict was properly overruled.

Some questions asked of witness Conover, the civil engineer who made a survey at defendant’s request and testified to his work upon the trial, were objected to on the ground that such questions called for evidence of a new survey, to demonstrate where the disputed corner ought to be, instead of a survey from original monuments mentioned in the plat and original stakes still in existence, for the purpose of determin*92ing the point in controversy, i. e. where the stake was set at the time of the original survey. We think the objections, were properly overruled, because the questions objected to had a legitimate bearing on the real issue between the parties, that is, the original location of the corner stake, and the trial judge expressly limited the evidence to that and to the establishment of the corner, as one not determinable by proof of the location of the original stake, if the case failed on both sides on that point. Moreover, the witness testified to the location of the southeast corner of the block, as established by him by measuring from original stakes still in'existence. lie measured from such stakes, on the west and south exterior boundaries of the block, and by that means established the southeast corner, and from the point so established made his final measurements, testified to on the trial. That was a proper way to proceed in view of the controversy on which the case turned. *Racine v. J. I. Case Plow Co.*56 Wis. 539; *Miner v.*Brader, 65 Wis. 537; and *Madison v.*Mayers, 97 Wis. 399. True, if the facts were undisputed as to the place where the corner of lot 8 was originally established, proof of surveys made to establish it would have been immaterial; but, that being the disputed question, proof that measurements from the nearest known original stakes on the same line, or points established as correct according to the original survey, reached a location for the disputed corner consistent with'that claimed by the defendant, was proper, as corroborating her evidence respecting the former location of the stake.

It is further contended, as we understand it, that the evidence does not sustain the verdict because, according to the undisputed evidence, an extension of the south line of lot 8 from the southwest corner, parallel with the north bound-, ary line, shows with mathematical certainty that the proper location of the disputed corner is as claimed by plaintiff. Mr. Hodge, a surveyor called by plaintiff, testified that he *93located the corner by that method; that he paid no attention - to the location of the southeast and northeast corners of the block. We know of no rule to warrant the location of a lost corner in that way. The unvarying rule to be followed in such cases is to start at the nearest known point on one side of the lost corner, on the line on which it was originally established; to then measure to the nearest known corner on the other side, on the same line; then, if the length of the line is in excess of that called for by the ■original survey, to divide it between the tracts connecting such two known points, in proportion to the lengths of the boundaries of such tracts on such line, as given in such survey. To establish the lost exterior corner of an inside lot •of a block of platted land by measuring from a corresponding lot corner on the other side of the block, parallel with the opposite side of such lot, to an intersection with the side ■of the block in which the lost corner exists, and then establish it at the point of intersection, would be as erroneous as to run a line from the quarter-section corner on the west side of a section, through to the east side, parallel with the north or south boundary, to locate the quarter-section corner on such east side. The method always followed in reestablishing corners, is to measure the line connecting the nearest known corners, on the same line, on either side of the lost corner, and then divide the excess, if any be found, •as before stated. *Pereles v. Magoon,*78 Wis. 27; *Jones v.*Kimble, 19 Wis. 429; *O'Brien v. McGrane, 27*Wis. 446. The witness Conover located the southeast and northwest corners of block 4, and then proceeded as indicated, to determine the location of the disputed corneiv That ivas the only proper way to locate the corner if it was what is known as a lost corner; and it was a proper way to test the truth of .the witnesses who testified to the actual location of the stake.

There were numerous exceptions taken to the exclusion ■of evidence offered on rebuttal, all of which has been'exam-*94inecl without discovering any ground for a reversal of the judgment. This opinion could be drawn out to great length by discussing such exceptions in detail, but as none of them involve- any but very familiar principles, a statement of the reasons for overruling them on this appeal would be without value as a guide in future trials, therefore it is not deemed advisable to say more in regard to them.

*By the Oourt.*— The judgment of the circuit court is affirmed.