Opinion
No. 71-074 (Supreme Court No. 24544)
Decided April 13, 1971.
Statutory action seeking determination of boundary lines between each of a row of adjacent property owners. Plaintiff appealed trial court order requiring "exchange" of deeds so that property lines would coincide with existing fence lines. Affirmed in Part, Reversed in Part.
1. BOUNDARIES — Determine — Boundary Line — No Other Relief — Error — Order — Plaintiff's Deed — Strip of Land. The statute, C.R.S. 1963, 118-11-1, et seq., merely permits the court to determine the disputed boundary lines between the parties and where no relief of any nature other than the ascertainment of this true boundary line was sought by any of the parties, it was error for the trial court to order plaintiffs to deed a strip of land to defendants so that existing fence line would coincide with actual boundary line.
Error to the District Court of Jefferson County, Honorable George G. Priest, Judge.
Holley, Boatright Villano, Gerald E. Boatright, for plaintiffs in error.
Zarlengo, Mott Carlin, Albert E. Zarlengo, for defendants in error Robert E. Dorsey and Lenore M. Dorsey.
No appearance for other defendants in error.
This case was transferred from the Supreme Court pursuant to statute.
This is an action brought under C.R.S. 1963, 118-11-1, et seq., which provides for the ascertainment of disputed boundary lines between adjacent property owners. The plaintiffs, B. A. and Wilma S. Smith, are owners of a tract of land located in Block 23, Coulahan Range. Their immediate neighbors to the east are the defendants Robert E. and Lenore M. Dorsey. The tract of land immediately to the east of the Dorseys belongs to the Lanyons, and immediately to their east is a tract owned by the Foxes.
The suit started when the plaintiffs filed against the Dorseys, alleging that the boundary line between their properties was in dispute. The Dorseys generally denied this claim, and requested that the court determine the true boundary line. In turn, the Dorseys filed a third party defendant suit against their neighbors to the east, the Lanyons, who in turn filed a fourth party complaint against their neighbors, the Foxes. In addition, the Dorseys filed a third-party defendant suit against their grantor, B H Investment Company, as well as the grantor's agent, H. B. Wolff and H. B. Wolff Company. The Dorseys also sued the surveyor, Floyd H. Miller, who had made the survey in 1951 which they used when they purchased their property.
Under the provisions of C.R.S. 1963, 118-11-1, et seq., the trial court is to appoint a land surveyor, designated as commissioner, who must then make a survey of the disputed boundaries and file a report with the court. C.R.S. 1963, 118-11-6. Thereafter a hearing is to be held upon any exceptions to the report, and the trial court must then accept, modify or reject the commissioner's survey. C.R.S. 1963, 118-11-8. The boundary established by the court in these proceedings then becomes the true boundary line of the property. C.R.S. 1963, 118-11-9.
Here, a commissioner was appointed who made a survey which showed that the fence line used by the Dorseys as the western border of their land, separating it from the Smiths' property, was in actuality four feet plus inside the Smiths' property. In turn, the true west boundaries of the property belonging to the Lanyons and the Foxes were shown to be each slightly more than four feet to the east.
A hearing was held in compliance with the statute, C.R.S. 1963, 118-11-6, at which time the commissioner submitted his survey showing the location of the various boundaries and how each must be shifted four feet plus to the east. The third party defendant Miller also testified at this trial as to why there existed a discrepancy between his survey and the commissioner's.
In brief, Miller testified that he established the measurements of his 1951 survey from monuments, which are no longer in existence. Miller testified that at the time of his survey he started from a monument in the southeast corner, which he first had to reset. He then made his various measurements, marking on the ground the boundary lines used by the Dorseys to set their fence.
The commissioner testified that he used the "proportionate measurement" method to determine the true boundary lines, which he measured from control lines found in two adjacent streets.
After hearing the evidence, the trial court dismissed the suit against Miller on the grounds that he was not negligent in making his 1951 survey and held:
"IT IS THE ORDER OF THE COURT that the report of the commissioner be confirmed as to its correctness, and, further, that none of the parties involved herein shall move their fences or the shrubbery which adjoin the fence and which becomes a very costly adjunct to the relocation of the fences, but, rather, all of the parties to this action shall exchange deeds with each other so that the property enclosed by the existing fence of each of the parties shall be corrected to include that land only, and that the property shall be described by the corrected description in the future, such descriptions to be prepared by the commissioner."
The plaintiffs have appealed from this order but only the Dorseys have elected to make an appearance. Essentially, the plaintiffs' argument is that the trial court lacked authority to order them to deed their east four feet to the Dorseys.
We are in agreement with the plaintiffs' position. The location of the true boundary line between the property owners was the sole issue before the court. Exceptions were made to the report on the basis that it was in conflict with the 1951 survey done by Miller, which survey Dorsey claimed was correct. They do not claim that the commissioner's report was incorrectly made, but rather claim that the method used was inferior in accuracy to the one used by Miller, In light of the fact that Miller admitted the monument he used had to be reset, we cannot say as a matter of law that his method was the more accurate of the two, or the one that should have been accepted in lieu of the commissioner's. Rather, it was proper for the trial court to resolve the discrepancies, and either accept, reject or modify the survey set forth in the commissioner's report.
From the order it is apparent that the court accepted the report in full without modification. This meant that the fence line presently in use by the Dorseys actually lay four feet inside of plaintiffs' property.
[1] The statute authorizing these proceedings merely permitted the trial court to determine the disputed boundary line between the parties. No relief of any nature other than the ascertainment of this true boundary line was sought by any of the parties and we hold it was error for the trial court to proceed as it did, requiring the deeding of this strip to the Dorseys.
That part of the judgment which orders the parties to exchange deeds is reversed; the judgment dismissing the claim against Miller and the judgment confirming the commissioner's report is affirmed, and the cause is remanded for further proceedings on the basis of the correctness of the commissioner's report.
JUDGE DWYER and JUDGE PIERCE concur.