ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Variation of Needle. Where lines were originally run by compass, the variation of the needle when the line was run must be determined; the responsibility of determining the amount of variation rests with the jury, who, however, must decide this from the testimony of the surveyors or others regarding it. In such survey the term "true north" probably means the true north of the needle, the magnetic north, but the intent must be sought. Lines of Adjoining Tracts. Where lines and corners of an adjoining tract are called for, these govern, if sufficiently established, whether marked by monuments or not, and where nothing to the contrary restrains it, a survey goes to the adjoining tracts. Where no monuments mark either line, and a vacant space exists between two tracts called for as adjacent lands, the vacant space will be apportioned between the two in proportion to their respective interests. Where two surveys overlap, the first surveyed is superior. When there are conflicting descriptions in the same deed, that most favorable to the grantee prevails, in the absence of intent to govern it; the grantor probably wrote the deed, and it will be construed against him.

Replacing Corners of Public Lands. It has been stated that the corner once located by the surveyor in the Public Land Surveys stands as the correct corner; if obliterated in any way, it must be replaced in its original position, and oral evidence is admissible to show where it stood. If it is "lost" because nobody remembers where it stood, it must be replaced by re-running the old line. For this purpose, the field notes of the original survey should be consulted and used to furnish a guide to the new survey, which should endeavor to follow the original line in direction, precision, and in every respect, and in this way replace the lost corner as closely as possible. The manual and circulars of the General Land Office should be consulted carefully as a guide to the procedure to be followed. It is evident that the section corners of the Public Land Surveys will often be also the corner bounds of property.

Waters as Boundaries. Waters are often natural boundaries, and it becomes important to know what water line to use. It appears to be the law that the boundary of tidal waters is the line of ordinary high tide. The shore between high and low tide belongs to the State. This is the law unless modified by statute. For example, a very old statute of Massachusetts provides that the boundary extends to low water mark or to 100 rods from high water mark if this does not extend to low water mark. Where the description is "by," " upon," "to," or " along" the shore the authorities are conflicting as to whether this means high or low water. In the case of small tidal creeks, some courts have ruled in certain cases that the boundary was the thread of the creek. In the case of navigable non-tidal rivers, there is much confusion as to the law in different States.

Non-navigable Streams. With non-navigable streams, the rule is that the boundary extends to the thread of the stream. Deeds sometimes read "to the bank or shore" and sometimes mention a monument on the bank. In all such cases, with various forms of wording, the intent must be looked for, bearing in mind that in general a writing means what it says; a monument is sometimes placed on the bank because it is impracticable to place it in the thread of the stream. Where the natural boundary called for is a natural lake or large pond, the low water line is the limit. With non-navigable lakes or ponds there are many decisions favoring the center or thread of the lake or pond; with artificial lakes, the boundary reaches to the thread, although in the cases of some lakes of great age, they seem to have acquired the low water boundary.

Streets and Highways. With streets and highways, as a rule, the title to the abutting lands extends to the middle of the street. The descriptions in such cases often read "bounded by such a street." Sometimes the description says bounded "by the south side of the street," and under these conditions, the boundary has in many cases been held to be the side of the street, but not in all cases. The decision sometimes rests upon the point of who owned the lands occupied by the street before it came into use as a street. While the title may extend to the middle of the street, the public has an “easement” in the street for all legitimate public uses. If abandoned as a street, the land will ordinarily revert to the abutting owner.

Evidence as to Boundaries. In the case of doubtful or disputed boundaries, the ordinary rules of evidence seem often to be set aside if by this means it be possible to more readily reach the facts, where the conditions are little liable to abuse. In such cases oral evidence is admitted to show where corners stood or to clear up ambiguities in the descriptions of deeds. Declarations of persons deceased are competent if made previous to the suit, if they had special means of knowledge and were then disinterested. Declarations of a man against interest have been admitted not only against himself but also against others claiming under him. General repute is also competent evidence, and ancient maps are accepted as repute. Where a deed refers to another deed or a map, this becomes a part of the deed. The engineer or surveyor engaged upon boundaries in litigation should confer fully with his lawyer on such matters if opportunity offers, as the introduction of such evidence is very technical; in some cases, he must do the best he can before he has a chance to see his lawyer.

Boundary by Prescription. A wall or fence forming the division or boundary line between two pieces of land, if it has been unchanged for the requisite period, ordinarily twenty years, will by prescription become the true boundary, although differing from that called for by deed. Away from cities, farm lands bounded by wall and fences often have no deed

description which determines lines with precision. In such cases these walls and fences, as natural boundaries, fix the lines.

In cities also, even where a tract has been divided into lots and plats filed, the fences which determine lines of occupation or "adverse possession" for the requisite time, are equally the boundaries, by prescription.

Lines of Streets and Highways. The lines of streets and highways as shown by fences or buildings or other natural boundaries, also fix the street lines in the absence of formal previous determination of such lines by the proper town, city, or county authorities, provided they have existed for the necessary period of time. Touching this, however, there often is statute, or ordinance, or other legislative authority, and the surveyor should make himself familiar with any such legislation.

Authority of Municipal Engineers and Surveyors. It should be clearly understood that the official character possessed by a City Engineer or Surveyor or a similar town or county officer, does not commonly give him greater authority to determine lines than is possessed by other competent surveyors. Boundaries are fixed by the rules of Common Law or by statute, and the surveyor can do no more than give expression to these.

Vested Rights. A new street line, fixed by a City Council under its proper powers, may change the line of a street, but if lands of abuttors are taken beyond the fence lines fixing boundaries by prescription, such lands must be paid for; no official action may do away with vested rights.

Evidence of Boundaries by Prescription. Ordinarily the survey shows the lines of fences as existing, and the period for which they have so existed is a matter of fact, depending on evidence. The information given the surveyor may in some cases be incorrect, and may be overcome in case a suit at law should follow. A surveyor may sometimes have old field notes which as evidence would be substantially conclusive. In the absence of this, he should retain memoranda as to the information given him, as this may afterwards be important if available, in case his survey should be disputed.

Securing Stability of Surveys. It is desirable from the standpoint of public policy, looking to certainty and stability, that surveys made by one surveyor should be accepted by later surveyors unless clearly incorrect. In case of dispute, a line may often be satisfactorily settled by conference between surveyors representing conflicting interests. The standing of engineering in a community will properly be advanced by such harmonious action between surveyors. Furthermore, in very many cases the interests of the surveyor's client will be better served by a reasonable adjustment than by an expensive lawsuit.

Descriptions. The engineer or surveyor often is called upon to describe lands for a deed. He should make sure that his descriptions are clear

and that all ambiguity is avoided. If the deed is to convey all the land between two owners, as in case of the right of way for a railroad, it is best to so state, further describing in such manner as will best make the lands certain, and follow with the acreage as near as may be." On one railroad the description for right of way reads in effect:

"fifty feet on each side of the center line of the National Public Railroad as located and constructed, between the lands of Thomas Jenkins on the North, and Ezra Perkins on the South; the same extending from station 102 + 63.2 to 110 + 27.9 and containing one and seventy-six hundredths acres as near as may be."

The apparent intent is to convey all the lands necessary to the railroad lying between Jenkins' and Perkins' lands; the stations mark the general locality and the acreage shows the amount of land.

CHAPTER VII

CORPORATIONS

Business Associations. In conducting business, associations of persons are not always corporations. Partnerships for such purposes existed before corporations seemed necessary and a consideration of partnership is desirable before considering corporations.

PARTNERSHIP

Definition. When two or more competent parties unite their resources and interests, by agreement with each other to carry on some common legal business and to share in the profits or losses, the relation of partnership results. It is not necessary that all of the resources and interests of a partner shall be engaged in the partnership. A contract is essential, and the intent to form a partnership governs, at least between the partners. Where a corporation is formed in accordance with statutory provisions, the association is not that of partnership.

Agreement. The agreement should be in writing and clearly define the terms of the partnership. The mutual agreements constitute the considerations which are necessary to any contract. The partners need not either contribute equally or share equally in the profits or losses. One member may contribute money or other property, another may contribute only experience. The services rendered may require the entire time of one partner and a portion only of another's. The profits may be divided in any proportion agreed upon. In some partnerships, each member may be allotted a salary, not necessarily equal, and the profits may be divided in proportion to the capital contributed by each. The partnership contract should clearly define all such matters, as well as provide for winding up the partnership affairs in case of dissolution either through death or other contingency. It is worth while to employ a lawyer to pass upon any partnership agreement or perhaps to prepare it.

[ocr errors]

Property. Partnership property is that agreed to be devoted to partnership purposes. It ordinarily includes: 1. The capital contributed

« ÀÌÀü°è¼Ó »