Action for damages alleged to have been suffered through deceit of defendants. Action dismissed as to defendant Baura May Palmer. Judgment for plaintiff against the other defendant, and from the judgment, and’ an order denying a new trial, such defendant has appealed.
Plaintiff was the owner of a stock of merchandise. Defend^ ant claimed1 tol be the owner of a tract of land described as lots 3, 4, and 5, and the S. E. % of the N. W. JB of section 6, township 104, range 65, Aurora county, S. D., which description we will hereinafter, refer to as the “N. W. of 6.” It is the con-, tention of plaintiff that the defendant, well knowing-that there was no land that would answer the above description, willfully and1 fraudulently represented that he owned such land1; that he took plaintiff onto a tract of land, the description of which Is the N. E. of 6, and willfully andl fraudulently and with intent to defraud plaintiff represented that the said land was the N. W. of 6; that, relying upon such representations, he assigned such stock' *450oí good® to defendant- and took in exchange a deed purporting to convey the s'aid- N. W. of 6; that said tract of land was represented1’ to contain 204 acres; that the land shown plaintiff was of the value of $38 per acre; and that plaintiff was damaged in the full sum of $7,752, the value of. 204 acres at $38 per acre, because defendant’s deed did not convey any land whatsoever. The trial court instructed the jury that there was no such land as the 'N. W. of 6.” Defendant assigns error in such instruction.
[1] To- aid in an understanding -of the facts revealed by the evidence herein, we attach a plat representing section 6, township 104, range 65, and section 1, township 104, range 66.
This plat conforms to the field notes of the surveyor who surveyed the interior -of Tp. 104, R. 65.
B-D. — Original and correct township line between ranges 65 and 66.
D-N. — To-wnship line as erroneously located.
*451P-DU-Q. — N. E. 54 Sec. i, as per erroneous survey.
B-C-G-H.- — That part of tract in both surveys which would be in N. W. 54 6 in correct survey.
B-E-O-L.' — Dotted lines. Sec. 6, Tp. 104, R. 65, on correct survey.
A-D-N-K. — -Solid lines. Sec. 1, Tp. 104, R. 66, on erroneous survey.
When the government survey was made, there was first a survey of the township lines. Three years thereafter the interior lines of these townships were surveyed. The interior survey of township 104, range 65, was first. Soon thereafter another surveyor surveyed the interior of township 104, range 66. There is nothing to show but that, in making the survey of the interior of township 104, range 65, the surveyor conformed his survey to the township lines as laid out by the township surveyor; but the other surveyor, instead of conforming his survey to the township lines1 as laid out, took it upon himself’ to establish a, new township line between ranges 65 and 66. ' The township line, as laid out by this surveyor, along the east side of section 1, township 104, range 66, was located in his field notes along the line D-N. The township line, as located by the original survey, ran, according to the same field notes, on the line B-L; the distance between these two lines being practically one-third of a mile. Thus it will be seen that, according to the interior survey of section 6, such section would be bounded by the lines B-E-O-L; that the N. E. 54 °f such section 6 would be within the lines C-E-J-H, and the N. W. 54 of section 6 would be within B-C-G-H; and, according to the interior survey of section 1, such section would be included within the lines A-D-N-K, the two surveys overlapping and containing within both the tract described as B-D-N-L. A glance at the plat will show that the tract B-C-5H-G, a part of the territory included within both of such interior surveys and the tract that would be the N. W. of 6 in the survey of township 104, range 65, although about 52 chains in length north and south, comprises much less than a ■ quarter section of land. The field notes of the interior survey of township 104, range 65, show that the N. W. of 6 was of the same length- north and south as shown on this plat, 'but that it was- nearly a half mile in width and contained 204 acres. It is therefore clear that there was an *452error in the interior survey of township 104, range 65, or else that there was error on the part of the surveyor who surveyed the interior of township 104, range 66, in his location of the original township line, and that it must have lain farther west than the line B-L. But whether the tract B-C-H-G should comprise 204 acres, or considerably less than that amount, is immaterial so far as this appeal is concerned, though it might eventually be material, if defendant should' be able to prove that he was the actual owner of the tract that, in the survey of the interior of township 104, range 65, was the N. W. of 6, and that -it actually contains 204 acres.
The -trial court was undoubtedly influenced in its instruction by the -decision of the Iowa courts in Skeels v. Porter, 165 Iowa, 255, 145 N. W. 332, which was an action wherein- there was a claim for'damages arising from- -deceit alleged to have been practiced in an exchange of some Iowa land for the S. W. %. of section 6, township 104, range 63, Aurora county. The Iowa court apparently assumed — there being no evidence, so far as the record shows, .to -the contrary1 — that the surveyor, -who disregarded the line B-L and located a new -to-wnship- line at D-N, had authority so- to do-. In its opinion it says:
“It plainly appears that the government had not subdivided, nor 'intended to subdivide, the western tier of sections [in township 104, range 6^1, but had caused the east -half to be surveyed as quarter sections, and eliminated the west quarter sections by the -correction of the township boundary.”
[2] In that case there could have been no evidence of the interior survey of township 104, range 65, including the dividing of section 6. In the present case the evidence clearly established that the proper surveyors — -to-wit, those whose duty it was to lay out the -township line — did lay out a township line represented by B-L; that a surveyor afterwards surveyed- the interior of township 104, range 65, surveying the same to such township line, and laying out a tract described as the N. W. of 6; and that this tract was afterwards conveyed by government patent, under which, through- mesne conveyance, -defendant claimed title. The evidence in this case further shows' that the surveyor, who- is sent by the government to survey the interior lines of a township, has no authority whatsoever to disturb the township lines. Therefore *453the surveyor-, who surveyed- the interior of township 104, range 66, and located the township line at D-N, did so without authority, and his survey, in so far as it encroached upon township 104, range 65, was invalid. Under the facts stated in the Iowa case, the holding in Steels- v. Porter, supra, was clearly right, but such holding cannot be supported by the facts established in this case. Without som-e -evidence that the government ratified and adopted the actions of this last surveyor, his survey c-annot control- as against the -other survey. There is no evidence of such approval or adoption, and through the fact that the government saw fit to give a patent describing the land1 conveyed as the N. W. % of section 6, township 104, range 65, we have evidence that the government never' did reject the authorized survey. There is no evidence in this case as to whether or not the government has ever granted or given any patent to the N. E. % of section 1, township 104, range 66. If it had n-o-t given such a patent at the 'time of giving the patent to the N. W. of 6, township 104, range 65, then certainly the grantee in the patent to the said N. W. of 6 received title to the tract -designated as the N. W. of 6 in t-he authorized survey. We must therefore presume, for the purposes o-f this' case, there being no evidence to the contrary, that the defendant is the owner of that tract of land bounded by the lines B-C-G-H, -and- that his conveyance to the plaintiff conveyed that tract.
We do not -desire to be understood as expressing any opinion as to the present ownership nor the exact extent of -this tract B-C-G-H. It is possible that some person, -claiming under a patent to the N. E. % of section 1, township 104, range 66, has long ere this acquired', if not through a grant from the government, at least through -adverse possession and payment of taxes, a title thereto goo-d as against', the title claimed by defendant, and that the -defendant, as a matter -of fact, -did not have, -and well knew that he -did not have, any title to the tract of land which he was purporting to convey. But these are facts which, if true, should have been shown by the plaintiff. His failure to show same -may -have been the result -of his failure to- -recognize the clear distinction between the facts established in this case and the facts upon which the decision in S'keels v. Porter, supra, rested.
*454There was an instruction that directed the jury, if it found certain facts to* be true, to predicate the damages plaintiff could recover on the amount of land in the N. E. of 6, township 104, range 65. We do not deem it necessary to discuss the theory that apparently controlled the mind of the trial court. It is perfectly clear that, if plaintiff is entitled to any damages, it is to damages based on the fact that defendant represented to him that he o-wned 204 acres of land and purported to convey that much by the wording of the deed he gave plaintiff.
The judgment and order appealed from are reversed.