CASE 14. — ACTION BY J. T. WAINSCOTT AGAINST C. H. CROUCH TO ESTABLISH THE BOUNDARY OF HIS LAND. — February 22.

#### Crouch v. Wainscott

Appeal from Owen Circuit Court.

W. B. Moody, Special Judge.

Judgment for plaintiff. Defendant appeals.

Affirmed.

1. Land — Boundaries—Establishment—Precessioning—Notice—Ky. Stats., 1903, section 2372, requiring one desiring to have his land processioned to give notice to any person interested, means a written notice.

2. Same — Parol Notice — Sufficiency—Ky. Stats., 1903, section 2374, providing for the processioning of land, makes the proces-sioners’ report prima facie evidence as between parties interested, and provides for a written notice to any one interested by the land-owner having his lands processioned. Held, That a parol notice to one interested was sufficient to render the *108proceedings binding upon him where he was present pursuant to the notice and participated in the processioning.

3. Same — Evidence—Burden of Proof — Under Ky. Stats., 1903, section 2374, providing for the processioning of land and making the report of the processioners prima facie evidence as between parties interested, in ejectment, the report of processioners on a processioning of plaintiff’s lands, of. which defendant had proper notice, made a prima facie case as to the boundaries.

GARNET & CAROTHER for appellant.

CAMMACK *&*PERRY for appellee.

OPINION by

Judge O’Rear.

— Affirming.

The issue in this action of ejectment was the true location of the boundary line between the tracts of land owned by appellant and appellee. Originally, and many years ago, both tracts were included in one boundary, but it was partitioned and deeds made accordingly to- the parceners. Upon the trial the evidence was conflicting as to the true location of the disputed line. The jury found it to be as contended by appellee. Their finding was in accordance with a processioner’s report, which had located and marked the line some time before. The admission of this report in evidence is relied on by appellant as a reversible error.

Whether the report was admissible, and what probative effect it had, are the only real questions presented for review. Processioning of land is a system common to but few of the American States. Tennessee, Georgia,, North Carolina, and Kentucky have it; possibly others. Miller v. Heart, 26 N. C., 23; Watson v. Bishop, 89 Ga., 53. But, where the section and township system of location as modeled by the United States Government are in use, there is probably little *109or no use for the office of proeessioners. In those States like Kentucky, where the monuments of boundaries are marked trees, or stones, or other natural or artificial object, the original boundaries having been laid out in most instances in irregular shape, and comprising variable quantities of land, it is a •matter of first importance, frequently, that these monuments' should he preserved, or, if lost or destroyed, should he restored, or otherwise supplied. Their existence and known location are the most essential evidence of the true location of the owners ’ lands and of their exact boundary. Their preservation is deemed a matter of more than personal importance to those directly concerned, to-wit, the owners; for as large bodies of land originally granted by the State came in the course of time to be divided, and again divided into smaller ones, the original corners and lines of the tract originally granted became of common interest to all who own parcels of it. In addition, the custom was, and yet is, to call in one patent or deed for a corner or line of an older patent or deed; thus by adoption making what was once evidence of but one boundary evidence also of another since erected. This matter has been so recognized as a question of public concern that it is now, and since the organization of the C'omomnwealth .has been., a high misdemeanor or felony to destroy wantonly or fraudulently corner trees or monuments of boundaries. Vide sections 1228, 1256, Ky. Stats., 1903. If it was so important to preserve these original corners and marks — all necessarily subject to the mutations of time and accident — it was no less important to reestablish and re-mark such as may have become obliterated or destroyed.

*110In 1796 the first statute of this. State was. enacted providing processioners of land, and defining their duties. 1 Litt. Laws, p. 554, c, 275. It was in the main the same as the present statute on the subject. The material difference will be pointed out further along. The act of 1796 was extended in 1815 (5 Litt. Laws, p. 146, c. 180), and again in 1817 (5 Litt. Laws, p. 509, c. 498). The provisions of these statutes were subsequently brought forward in the revision of 1851 (Rev. Stats., c. 60), and in the revision of 1873 (Gen. Stats., c. 64). The preamble of the act of 1796 runs: “"Whereas many inconveniences may arise to the citizens of this Commonwealth in case of the death of the only person or persons by whom their improvements, boundaries and the specialty of their entries can be established, and on which their titles to land depend; * * * ánd whereas it is represented to the present General Assembly, that the landmarks in this State, some of which are destroyed by fire and otherwise, particularly the corner trees, so that in a few years the bounds and corners cannot be ascertained: For remedy whereof, Be it enacted,” etc. It is thus disclosed, as well as by the context of the act, that the purpose was to perpetuate two classes- of evidence, deemed of general importance to the public as to particular persons, respecting the original location of boundary lines and the monuments thereof. One class of 'this, evidence was the testimony of the living witness. The other was the true location of the original monuments and lines by substituting another monument or re'-m'arking one for the one destroyed or effaced.

The present statute on the subject (sections 2367-2374, Ky. Stats., 1903) is a substantial re-enactment *111of the original and amendatory acts just discussed. By section 2367 it is provided that the county courts of the Commonwealth shall appoint three discreet, qualified persons proeessioners for the county, two of ’whom constitute a quorum, and who- are compelled to qualify by taking an oath of office. Section 2368 reads as follows : “The proeessioners shall, on the application of any person producing his title papers, go around his land, or such part as he may desire, and re-mark the same, taking care that the re-marks are on the old lines; and when they find the corner trees, posts or stones, or any of them, removed, defaced or rotted down, the proeessioners shall mark new corner trees, or place stones or posts, properly marked, where the old corners stood. The proeessioners shall report to the county court the land they have processioned, the land of the persons it adjoins, and what alteration of corner trees, posts or stones have been made or added.” Section 2370 provides that the county surveyor, or some surveyor appointed by the court, shall attend the proeessioners, and shall make out a plat and certificate of the land of the applicant, which shall be filed with the report. Section 2371 allows the proeessioners to take depositions of such witnesses as may be produced by either party, to be returned with their report. 'Section 2372 .provides that notice shall be given by any person desiring to have his land processioned to any person interested. Section 2373 regulates the proceeding where the land lies in two or more counties; while section 2374 reads as follows: “The reports of proeessioners, the plats and certificates of the surveyor, notices and affidavits, and depositions taken by the proeessioners, shall, when returned to the County Court, be filed *112away and carefully kept by the clerk, and the report, notice and plat be recorded, and shall be prima facie evidence against and between the parties interested and others claiming through or under them. ’ ’

"We have so far omitted section 2369, which is an addition in some of its features to the original statutes. The other sections, besides 2369, refer to proceedings where one party alone, not by an agreement with an adversary claimant, desires, to have the lines , of his boundary of land located or remiarked, and a record thereof made. Provision for notice to the adversary gives him an opportunity to be present, to have his lines also remarked, and to perpetuate evidence by taking depositions. The effect of these procedings is not to adjudicate disputes, nor to adjudicate conflicting claims. It is only to perpetuate evidence. By section 2374 the effect is that as between those who- had notice the p-rocessioner’s report and plat shall be prima facie evidence of the facts to which they relate. Section 2369 deals with a different phase of the subject. That applies where two or more owners of adjoining lands- agree and join in the request to have ■ their division line. marked. The proceedings under the last-named section must be not only joined in by all the parties concerned, but their assent must be indorsed in writing on the report and signed by the parties. Such report is made exclusive evidence of the facts it recites as- between the parties and their privies-, except in cáse» of fraud or mirepresentation.

The processioning in the case at bar was not under section 2369, but was under section 2368. It is objected that there was not written notice given by appellee to appellant of the time and place of the meeting of the *113processioners* We think written notice, wliere it is served otherwise than by publication, is the notice required by section 2372, Ky. Stats., 1903. The same provision was in the old statutes* Yet it was held that where a party, in interest appeared without the requi-h site notice, and was present at the processioning, the office of the notice had been supplied, and he would be bound by his appearance as a waiver of notice. Miller v. Patrick, 7.T. B. Mon., 363; Johnson v. Norton, 3 B. Mon., 429. In this case the evidence is that appellant was present pursuant to the parol notice, and participated in the processioning’. The result is that the report of the processioners, locating and marking the lines and corners of apepllee’s lands, was receivable as evidence under the statute, as against appellant, to show the true original location of such lines and corners. McLawrin v. Salmons, 11 B. Mon., 96; 52 Am. Dec., 563; Warmoth v. Tobin, 6 Ky. Law Rep., 586. The action of the processioners was an official act, done under the sanction of an oath by public officers in the discharge of a statutory duty.

Such action, while it may not, and does not purport to, establish rights, may be made prima facie evidence of the existence of the facts so required to be and in fact reported to have been ascertained by such, officers.

It is competent for the Legislature, and it is not an infrequent thing for it, to make official certification of a fact prima facie evidence of the fact, wherever it may be relevant to prove such fact in an action in court. This does not, as seems to be assumed in argument, decide the fact to be so, but easts the burden of disproving it upon him who denies it. The location of a particular line or corner to a boundary of land, *114as such, line or corner originally existed, does not necessarily establish the supremacy of the title. That •question is left to be determined according to the rules of practice. The report of the processioners is evidence, prima facie, of the fact that the corners and lines therein established are at the same places fixed in an original document or proceeding. "Whether the party then owns tire land embraced by such lines is to be determined upon the whole case by the court ■or jury trying the fact. The superiority of such title is not affected, and is neither enhanced nor diminished by such report. Such was the practice in the instant case. The evidence was properly admitted.

Judgment affirmed.

Petition for rehearing for appellant overruled..