Ellery

The three cases noted in the title were all instituted against the defendants to recover damages in trespass for cutting and removing timber from lands claimed by each plaintiff. The cases were consolidated for trial, were tried before the court sitting without a jury, and in each case judgment went for the defendants. The plaintiffs have joined in an appeal on typewritten transcripts.

The controversy arises over the conflict and uncertainty of surveys made by the contending parties showing the line of division between the lands owned by the respective plaintiffs and the defendants. This conflict, in turn, arises from the loss or obliteration of some of the government survey corners established in 1872 and particularly the common corner of sections 4, 5, 8 and 9. The case presented to the trial court was a simple question of fact— whether the defendants committed a trespass upon lands owned by the plaintiffs. On that issue the burden of proof was on the plaintiffs and the trial court found that that burden had not been sustained. On this appeal the single point raised by the appellants is that the evidence is insufficient to support the findings. There is no rule of law involved…