Plaintiff, claiming to ¡be the owner in fee of the southwest quarter of section 29, township 104, north of range 65, in Aurora county, brought this action for the recovery of the possession of said premises from defendant,-to determine the adverse claims of the defendant, to have adjudged that the claim of defendant thereto is inferior and' invalid as against the title of plaintiff, and that defendant and all persons claiming under him be forever enjoined and restrained from thereafter claiming or asserting any right, title, or -interest in or to said lands adverse to plaintiff. The defendant by way of answer alleged that he is the owner and in the actual possession of the southeast quarter' of section 30, township 104, north of range 65, in Aurora county, and that defendant and his grantors have had actual possession of said premises and have improved the same and paid the taxes thereon for more than ten years prior to- the commencement of this action, and that said described premises, the said southeast of said section 30, is the identical land which plaintiff claims to he the owner of as the squthwest of said section 29. Prom these pleadings it will be observed that the controversy between these parties is whether or not the said quarter section of land is in fact the southwest of 29 or the southeast of 30 in said township and range.
[1] By some error in the original survey thereof said township 104 — 65 is not 6 miles square. It is 6 miles north and south and about 5y2 miles east and west. In Mason v. Braught, 33 S. D. 559, 146 N. W. 687, and Neumeyer v. Palmer, 39 S. D. 447, 164 N. W. 1025, the same error as to survey, was involved. The decisions in these cases involve purely questions of, fact based on the evidence appearing in the record in each particular case, and it does not necessarily follow that the result should be the same in every case involving this erroneous survey, as each case must be determined only in the light of the evidence peculiar to that particular case. The following’plat of township 104 — 65, based upon the original governm'ent, survey, -and evidence - preserved in the record, will serve to illustrate the vital points in the controversy, the dots at section corners and along section lines representing original government mounds still existing, as shown by the evidence.
[2] In the year 1888 the United States government, by patent, conveyed- a quarter section of land in said township to one Caulum, as the- southwest quarter of section 29; and by succeeding mesne conveyances the title so conveyed' to 'Caulum became and now is vested in the respondent. In the year 1887 the United States government, by patent, conveyed a quarter section of land in said township td one Lennin-ger, as the southeast quarter of section 30, and by succeeding mesne -conveyances the title so acquired by Lenninger became and now is vested in appellant. About 1903 appellant -made a filing' upon' what was designated in the filing papers as the' southwest quarter of section 30 in said township and range. By reference to the plat it will be observed that it we coi,
[3] At the beginning of the trial the defendant demanded trial by jury, which was denied, such ruling of the court now being assigned as error. We are of the view that the real gist of ■ this action is of an equitable nature properly triable on the equity or chancery side of the court, and that the question of possession involved in the issues is merely incidental to the main issue as to who actually has title to this particular parcel of land. Byrne v. McKeachie, 29 S. D. 476, 137 N. W. 343. All assignments of error have been considered.
Finding no error in the record, the order and judgment appealed from are affirmed.