The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1892-10-26
ORIGINAL SURVEYS.
Judge zane's Decision in the
Duncan-Spafford Case.
The Lines Must be FollOwsd-A Case That is
Of Universal Interest in
Salt Lake.

Considerable interest having been taken
In the case OF Adam Duncan against w. H.
II. Spaford and others, in the Third dis
trict court involving the question of the
correctness of original surveys as against
those made by City Engineer Doremus, a
number of property owners involved in
like questions have requested that the de-
cision of Judge Zane, which is that the ORR
Rinal surveys must be followed, be pub
hshee, TIE HERALD complies with The re-
quest and gives IL herewith:
JUDGE zANE's DECISION.
Judge Zane said: In this action OF Adam
Duncan against ". Il. Ii. Spafford ana tlmer
Spanord, defendants. an action OF electment 20
recover TWO and one-nslf feet IN width acJein-
ing the line between lots and =. block 10, plat
- the contention is as to the line between the
lots OF the parties 10 this action. PIa1ntln
Claims that tie line is where an OLD fence was
built where an old water ditch existed and
where the stakes were placed long existing
upon the ground and lQlcatlEg the corner and
line, as plaintiff insists, between the Two lots.
The defendant relies upon recent survey by
Tar. Dcremus and the question arises nrst
where this line ought 10 be IN the light OF the
evidence.
II seems from theevidence OF the plaintiff
that he took pos sessionin the name of his
father IN 1852 or 1853 OF lot . and al that time ne
states Lat Inc possession was taken up 10 inc
line that he TOW insists on, ana that IN 1877 The
lille was acquired under the TOWNSHIP law IRON
the mayor OF the city in accordance with those
lines. a ditch had existed Tor years upon the
line here IN dispute, and fence was erected
and g stake put down, and in 1882 Mr. Charles
W. Hardy made a survey and ne placed MIS-
stake on 1he line where the plalnDin CLAIMS IL
Is. His starting points were certain monu-
menls that he mentions IN his testimony,
which may not have been very reliable. The
fierce was put up at that time aud the posts are
sun standing although it was very poor fence
al the Time this action was Drought. After Inc
defendant took possession. II seems, some Two
years ago. he also erected a fence on the same
line.
After Mr.. Do-emus became city engineer, he
discovered that the original survey OF the city
was very Inaccurate The fences were not IN
line, and The Importance OF a re-s1rvey was
suggested, and he was authorized 10 make
re-survey. Ia making the re-survey he aimed
TO ascertain the corners as they were originally
put Gown. But finally IL seems that he made
survey clear across the city. and he took the
old fences and some Of the stakeS-found
stakes in some cases. but not as he thinks, the
Original STAKES. The original stakes were put
down some forty years ago. probably, accord
ing TO the testimony, and they were not OF
very durable quality, and they had all dlsap-
peared before The new survey was made, about
Two years ago; but there were some stakes
found along these streets and he also found
old fences, in a line however, always; and he
alto inquired OF old settlers, and In that way he
aimed TO make his corners correspond as near
rs he could with the original survey, and he
also aimed TO do as little harm, as
he said, to persons who had had possession
Tor q long time and whose fences indicated
their lots. and in some blocks where IL was
well established that the corner not in
line, he would effect the old corners. So that
Mr.. Doremus survey of course, as indicating
The original corners, is not reliable at all He
doesn regard ii So but he deemed it necessary
TO have a system ana TO establish corners from
which the property holders hereafter might es-
tablish their corners and The probabilities are
that they viii result IN causing great many
losses. because it is no doubt the law. well set
tied, that monuments control courses and dis
t1nces, ana Wherever the weight OF evidence
sustains the original corner IS being such, and
IL happens TO be out OF the line OF MIR. Doremus
survey, the original survey must govern IN all
cases
Now, il seems that this new survey, which
was last made, unsettles the fences and their
lines. most OF them. II would cut one brick
house, according 10 the evidence IN this case.
that has been built for some length of time
and IL would remove this line that has been
there recognized. by the plaintin at least for
ABOUT thirty years, and recognized by the par
ties occupying both lots for twenty years They
have occupied with respect 10 this line. they
have cultivated their lands aud made their i'm
prOvements with respect TO this line, and OF
course it would not do Ia adopt any such sys-
tenn as that which would result In
1nterminaDle litigation and wrong ana lnlus
tice The city engineer has no ght to settle
private disputes between parties. Wherever
property owners see At TO recognize his survey
1t is all right, bur where they do not and they
can establish by sufficient evidence that the
5AAC 10 LOe cSOOAO4Ak ouAtClk hu9f VI -
lire must stand.
The evidence in this case shows that the par
ties in 1881, put up fence Both Mr.. Allen
(Spanord's predecessor in interest) and Mr..
Duncan had fence built, which they agreed
There was stake put, up and that was
understood, and II is not sufficient now to say
that was mere mistake of theirs. They &C.
cupied according to il, and agreed upon it, SUBJ
stsntially, that it should be the line.
The defendant also insists upon an estoppei.
He testifies that last spring. year. believe IL
was. when he erected his house, the plaintiff
was living on the adjoining lot and made no OBJ
lection 10 it. There is a conflict Plaintiff
states that be was away. to Deep Creek. and
the building was not commenced when he went
away, and he knew nothing Of 1t until he re-
turned, as they were shingiing the building. AS
10 that, there is decided conflict in the evil
dence: but there seems 10 be no substantial
conflict that Mr.. Spaficrd knew OF these old
the old line himself. and as he states, the indi-
cations we're. that the p arties the respective
lots had occupied with respect to that line and
they conveyed 10 him. With that k1owledg
ne chose 10 take down this mans fence and put
his but ding some two feet and half on the
plaintiffs lot and then move his fence about
q loot or thirteen inches further west in all
taking. / infer. fully two and a half feet He
did that with his eyes open. He must have IN
CcrstoOd that that man had been claiming that
property and it was according TO his claim as
be made it when he put up his fence.
The case, j think. is clearly with the plaintiff
and Judgment VIII be entered accOrdinQly