ARNESON V. SPAWN.

1. Where the question is as to the true location of a government corner, and whether a certain mound, pits, and stake, testified to by witnesses, were the original marks of such corner, it is not error to admit evidence to show that such marks were years before, when they very plain and distinct, generally regarded and recognized as indicating the original government corner; and to that end it may be shown that permanent improvements, as lines of trees, roads, buildings, public and private, were, when such indications were plain and visible, located with reference thereto as the true government corner, by persons who had no other interest than to locate them correctly.

2. Where a written document or paper is offered in evidence, and its exclusion assigned as error, such rejected writing should be printed in the abstract, or its contents, or the facts upon which its competency depends, so particularly described as to fully inform this court of all the material facts upon which the trial court made its ruling. Otherwise no error is shown, and the ruling of the court below will be presumed to be correct.

3. It is not error for the trial court to withhold from the jury confessedly good law, when the same is not applicable to the questions before the jury on the evidence in the case.

4. The survey of the county surveyor, which under Section 689 et seq., Comp. Laws, carries the presumption of correctness, is the survey made, authenticated, and recorded as therein provided. Parol evidence of the acts of such surveyor does not take the place of his official report, nor support the same presumption.

5. If the original corners, as established by the government surveyors, can be found, or the places where they were originally so established can be definitely so determined, such location must control, without regard to whether they were located with mathematical correctness or not. 6. In determining whether the landlord or tenant, or both, may recover damages for injury to real estate, the general rule applies that wherever a legal right is violated the owner of such right is entitled to action therefor. If possession only is disturbed, the owner of the right of possession may have his action. If the freehold itself, independent of and beyond its use and enjoyment by the tenant, is injured, the owner of the freehold, in like manner, has his action.

7.

In this state the owner of real estate in the actual possession of a tenant may maintain an action for permanent injury thereto.

8. When defendant planted a fence across a portion of plaintiff's farm, thus cutting it off and attaching it to and enclosing it as a part of this (defendant's) farm, claiming and taking possession of the same as his own, thus initiating a possession adverse to the plaintiff, which, unresisted, would ripen into a prescriptive title, the plaintiff may, although the premises are in the actual possession of a tenant for a definite term, maintain an action for injury to the estate.

9. In such case it is not required that the complaint shall state explicitly that plaintiff's interest is that of a reversioner, or that the injury complained of is to such reversionary interest, where it does state that plaintiff is the absolute owner in fee of the land, and also shows an injury which must necessarily affect the estate itself.

(Syllabus by the Court. Opinion filed October 20, 1891.)

Appeal from circuit court, Minnehaha county.

Action by Ellen E. Arneson against Lewis Spawn for trespass. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.

The facts are fully stated in the opinion.

Davis, Lyon & Gates, for appellants.

There can be no constructive possession of land in the actual possession of another. Ruggles v. Sands, 40 Mich. 559; 8 Wait's Ac. and Def. 475. A landlord out of possession cannot maintain trespass. Lindenbower v. Bentley, 86 Mo. 515; Ullendorfer v. Saelgers, 50 Cal. 496; Tobias v. Cohn, 36 N. Y. 363. Wentworth v. Portsmouth & Dover R. R., 55 N. H. 540. The statute, Comp. Laws, § 2780, giving right of action for injury to the reversian does not apply. There were no allegations in the compliant of any injuries to the reversion.

A survey of land and marking a line and recording the survey is no evidence of any facts which go to make a title. At most they are only evidence of a claim of title. They are not even acts of possession. Outman v. Fowler, 43 Vt. 462; Kidder v. Kennedy, 43 Vt. 717; Atkinson v. Patterson, 46 Vt. 750.

The statute makes a survey made by the county surveyor, a matter of record and competent evidence of the facts it contains. Comp. Laws, § 690. The original not belonging to the party offering the evidence, the certified copy was admissible. § 5308 Comp. Laws.

Field notes and records of the government survey, made by sworn officials and recorded in the proper office, are competent. evidence under the provisions of Chapter 1, of Title 32, Revised Statutes of the United States. They are competent evidence at common law, because they were the official acts of a public

officer. Whar. Ev. § 668. They were also admissible on the grounds that they were public matters, made before any controversy arose, by parties having peculiar means of knowledge, and no interests to falsify. Whar. Ev. § 185.

In testing lines in both directions, if the distances between known government corners overruns or falls short of the required distances the difference should be divided pro rata between the intervening sections. Jones v. Kimble, 19 Wis. 452;

Mortz v. Williams, 67 Ill. 306.

The rule that in the construction of deeds, courses, distances and quantities must yield to natural or artificial monuments called for in the grant, is not inflexible, and it applies with less force to artificial than to natural monuments, and where there is anything in the description showing that the courses and distances are right, they will prevail. Baldwin v. Brown, 16 N. Y. 359; Higinbotham et al. v. Stoddard, 72 N. Y. 94; Moran v. Lezotte, 54 Mich. 90. When it is more reasonable to suppose that there is a mistake in placing the monument than in the courses and distances, the latter should prevail. Davis v. Ramesford, 17 Mass. 207; Shipp v. Miller's Heirs, 2 Wheat. 316.

McMartin & Carland, for respondent.

While a landlord out of possession could not maintain trespass at common law, he could always bring "an action on the case" to recover any damages done to the inheritance either by the tenant or a stranger. 1 Chitty's Plead. 139. Under the Code the plaintiff is only obliged to set forth the facts constituting his cause of action, and if under any form of action known to the common law he could have recovered then he can recover under the Code irrespective of the form of action. Pom. Rem. and Rem. Rights, p. 287; Fitch v. Gosser, 54 Mo. 270; Brown v. Bridges, 31 Ia. 145; § 2780 Civ. Code.

A person cannot lawfully go upon another's land without his permission, and he commits a trespass for so doing. Harrop v. Hurst, 4 Exchequer, 47. Where the infringement of a right might ripen into an easement or operate in derogation of the rights of another, it is a sufficient cause of action, though

Wood v. Wand, 3

no perceptible injury has been sustained. Exchequer, 772; Rochdale Canal Co. v. King, 14 Q. B. 138. An injury to a right is actionable, though the damage is inappreciable. Delaware & Hudson Canal Co. v. Torry, 33 Pa. St. 149; Miller v. Spateman, 1 Wm. Saunders, 346; 1 Woods Addison on Torts, p. 213; Battishell v. Reed, 18 C. B. 378; Kidgill v. Moor, 9 Id. 378. If anything is done to destroy the evidence of title, an action is maintainable by the reversioner. Young v. Spencer, 10 B. & C. 145; Blanchard v. Baker, 8 Greenleaf, 253.

The testimony of the witness Arneson as to setting out trees and building of the school house, was competent and relevant. After a party has made proof of a title to a tract of land, the question of whether the tract includes the premises in controversy is purely one of fact, and any evidence which tends to solve this question is admissible. Porter v. Miller. 13 S. W. 1890; Lawrence v. Tennant, 15 Atl. 543; Leach v. Bancroft, 61 N. H. 411; Mills v. Penny, 37 N. W. 136; Yates v. Shaw, 24 Ill. 367.

As to what rules of law should govern the re-establishment of lost corners, counsel cited McClintock v. Rogers, 11 Ill. 277; Yates v. Shaw, 24 Ill. 367; Colvin v. Fell, 40 Ill. 418; Thomas v. Sayles, 63 Ill. 363; Martz v. Williams, 67 Ill. 306; Irvin v. Ronamel, 68 Ill. 11; Almon v. Stevens, 68 Ill. 89; Rinert v. Brunt, 21 Pac. 809; Shafer v. Weech, 9 Pac. 202; Moreland v. Page, 2 Iowa, 139; Randall et al. v. Gill, 14 S. W. 134; Walrad v. Flannagan, 39 N. W. 645.

KELLAM, P. J. The answer denied, but on the trial it was conceded, that plaintiff was the owner in fee of the N. W. ‡ of section 32. township 101, range 47, situate in Minnehaha county. The facts alleged as plaintiff's cause of action are thus stated in the complaint: The defendant forcibly and unlawfully broke and entered upon the plaintiff's said land; took down a fence standing upon said land, removing the same; and also then and there erected another fence on said land, thereby fencing in about twelve acres of said land, the property of plaintiff; and also then and there disturbed the plaintiff in the use and

occupation of said land, preventing her from enjoying the same, and from receiving the rents, uses, and profits thereof, as she otherwise would have done, to the damage of plaintiff," etc. Defendant's answer was a general denial. It was admitted at the trial that the defendant had, prior to the commencement of the action, fenced in about thirteen acres of land which he claimed belonged to him,-a portion of the N. E. of section 31, township 101. range 47, for which, it was conceded, defendant held a patent. It will thus be seen that plaintiff and defendant, respectively, owned adjoining quarter sections of land, and the dispute between them was as to the true location of the corner which should be at once the northwest corner of plaintiff's land and the northeast corner of defendant's land, for that would determine the boundary line between them.

Upon the trial George Arneson testified that in June, 1884, he found the corner referred to, and particularly described how it was marked by mounds, pits, and stake, and the condition it was in; that he lived in that vicinity from 1873 until 1882 or 1883, and saw the corner "a good many times;" that he knew the location of the traveled road between the two quarter sections involved, and the east and west road on the north side of them; that these roads had been traveled since 1874; and that at the time of the trial they crossed or intersected each other, just where they did when he first saw them; and that he recollected when the school house was built and when other improvements were made about that corner. He then testified that lines of trees were planted along the east and west road and the north and south road in 1875, and were still standing; these lines of trees were on both sides of each road, about four rods apart; and that these lines of trees, so set, would correspond with the location of the corner, at the place where he had found it, as testified to and described by him; and that the line of trees running north and south opposite plaintiff's quarter (which would be defendant's quarter) were set by defendant, Spawn, in 1875. He also testified that the school house was built on the southeast corner of section 30, on a one acre VOL. 2, S. D.-18