Appeal from the Circuit Court of Morgan County; the Hon.
Richard J. Cadagin, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 28, 1982.
Petitioners, Clyde and Dorothy Dorsey, are the fee owners of a tract of land situated in Morgan County, whose southern boundary with respondents has been disputed for some time. Petitioners' parcel is described in their deed as "[b]eginning at the Northeast corner of the West half of the Southwest quarter of said Section Seven (7), and running thence West 80 rods, thence South 44 rods, thence East 80 rods and thence North 44 rods, to the place of beginning, containing 22 acres, more or less."
On May 1, 1980, petitioners filed suit pursuant to section 2 of "An Act to provide for the permanent survey of lands" (Ill. Rev. Stat. 1979, ch. 133, par. 12) which creates a procedure whereby persons whose corners and/or boundaries are lost, destroyed, or disputed, and who are unable to reach agreement may petition the court for the appointment of a commission of surveyors to assist the court in finally resolving the boundary dispute.
Although respondents denied that the corners and boundaries were in dispute, on September 29, 1980, following hearing on the petition, the trial court found that the corners were in dispute and agreed to the appointment of a surveyor. Instead of appointing the required three surveyors, however, the court appointed only one surveyor.
The survey was completed in December 1980 and was submitted to the court on April 6, 1981. Petitioners subsequently filed written objections to the plat of survey including, inter alia, their claims that the survey was not made in accordance with the original survey of 1820, that the survey placed reliance on improper monuments, and that a deficiency in the distance between the west section corners of 71 feet less than the recorded distance was not properly apportioned along the western section line of township 13 north, range 9 west, section 7.
At the hearing on the objections to the survey, John Garrison, the surveyor who performed the survey, testified regarding his methods. The surveyor stated that the starting point for the resurvey was the original government field notes. Using these as a basis, he proceeded first to attempt to locate in the field the original points called for in the notes. According to the surveyor, evidence of the original markers called for in the 1820 field notes for section 7 was not discovered. The notes of the government survey made in 1820 indicated that the southwest corner of section 7 was 236.9 feet or 3.59 chains north of the southeast corner of section 12, lying in the township to the west, and that the northwest corner of section 7 was 4.68 chains or 308.88 feet north of the northeast section corner of section 12. Garrison began on the range line dividing the two townships, measured north and south, and located two stones along the eastern border of section 12. Relying on older surveys which had referred to these stones, he concluded that these were stone monuments placed by county surveyors in the same location as the original government posts, though the distance between these corners did not correspond to the original measure. According to Garrison, the original field notes indicated that the distance of the eastern section line of section 12 was the standard mile, but, as measured by him, the distance between the two corners was 5,208.28 feet. The surveyor opined that the discrepancy was not due to an improper setting of the stone markers, but rather resulted from an error in the original government survey. He stated that he attempted to find the missing chain by retracing the range line north and south but to no avail.
By relying on the stone markers on the eastern corners of section 12, the surveyor located the section corners for the western side of section 7. He then placed the quarter-corner 40 chains north of the southwest corner of section 7 as indicated in the original field notes. Garrison noted that the government measure for the western boundary of section 7 was 81.09 chains while on resurveying it was established that the section 7 line was 71.94 feet shorter than the original government measure. Ordinarily, according to the surveyor, standard survey procedure would require that the deficiency be distributed along the entire section line, but in this instance the surveyor made no attempt to divide the deficiency pro rata along the line.
At the conclusion of the hearing on the objections, the court accepted the survey. Petitioners then filed a motion for rehearing alleging that the survey was erroneous because the deficiency of 1.09 chains was never apportioned between the section 7 corners and that they had received an opinion from the Chief of Cadastral Survey, Bureau of Land Management of the Department of the Interior, which indicated that the 1.09-chain discrepancy on the western section line of section 7 should be apportioned along the entire length. Petitioners further objected to the survey because the surveyor did not find true north when he ran the lines described in their deed. On April 19, 1982, written final orders were entered directing petitioners to pay all surveying expenses and costs, approving the survey, and denying petitioners' motion to reconsider.
In petitioners' first argument on appeal, it is suggested that the trial court erred in accepting the plat of survey which established the quarter-section line of the disputed property. It is petitioners' contention that the original corner monuments were obliterated and sufficient effort to re-establish those corners was not made. Relying on the authority of Irvin v. Rotramel (1873), 68 Ill. 11, the petitioners suggest that the disputed line was not established by reference to a known government marker, while respondents contended in reply that adequate efforts were made to establish the corners and that the resurvey properly followed the original government notes.
The importance of the ascertainment of the original monuments is clear. Since the parties' land was conveyed with reference to the original survey of the public lands of the United States, the original monuments or the points at which they were placed control their property rights. (Irvin.) As noted in Clark, Surveying and Boundaries sec. 377, at 457 (4th ed. 1976), "[t]he lines, corners and boundaries of the survey of the public lands as returned by the chief cadastral engineer and approved by the Government are unchangeable." Even where a resurvey shows an error in the location of the original monuments, the latter are still controlling even if inconsistent with calls for directions and course in a survey. (Ely v. Brown (1899), 183 Ill. 575, 56 N.E. 181; Clark, Surveying and Boundaries sec. 298, at 367 (4th ed. 1976).) To properly establish the quarter-section line, the resurvey was dependent upon the location of the north and south section corners of section 7. Once these corners are located or reestablished, the quarter-section line can be readily determined since the field notes of the original survey indicate that the quarter-section corner is 40 chains north of the southwest corner of section 7.
In Irvin, the supreme court held that the object of the retracement of surveys is the reestablishment of lines according to the original government notes, and that to properly establish the interior lines of sections, it is first necessary to establish the exterior lines and corners of the section according to the original survey and notes.
In dispute in Irvin was the location of the dividing line between the west and east halves of the southwest quarter of section 21, township 4 south, range 4 east. There the evidence indicated that the original government posts had been located at the southeast corner of section 21 and the southwest corner of section 20. Rather than running straight lines between these corners and dividing the distance according to the government field notes, the appointed commission of surveyors began on the disputed quarter-point along the south section line of section 21 and measured north. This was held to be error, the supreme court stating:
"It seems to us, before the commissioners could have correctly established this line, it was necessary first to establish the exterior lines and corners of the section according to the government survey and field notes, a copy of which every surveyor has or should have, and this can only be done, as the act declares, by referring to original government corners, or to stone corners or other monuments which have been in existence ...