Thomsen v. Keil

A strenuous petition for a rehearing has been presented. The first matter to which our attention is directed is language in the former opinion which counsel for appellant consider a reflection upon them. It was not our intention to single them out for criticism, and we do not think we said anything which justifies the conclusion reached by counsel. After again reviewing the record, we see no reason to retract what we said in that opinion. *Page 11

We quote from the petition for a rehearing:

"The second paragraph in the opinion shows, quite clearly, the court missed the main point in the whole case. This paragraph reads as follows: `A determination of the issues between the parties depends entirely upon the correct location of the north quarter-section corner of section 33, since the plaintiff is admitted to be the owner of the land to the east of the true line between the tracts claimed by the parties, and the defendant of the tract to the west of this line.'"

Counsel then says:

"It was agreed and stipulated between the parties that the boundary line between their respective premises was fixed originally by the United States government survey. The issue in the case, under the pleadings and under the stipulation, cannot now be framed by the court, unless, of course, the court may have meant the location of this corner as fixed by the United States government surveyor, and not the location that some surveyor or even a court might conclude was correct."

How could counsel presume that we meant any other quarter-section corner than the one located by the government survey? There could be but one quarter-section corner. We think it a waste of time to undertake a serious consideration of such a point.

After a careful examination of the petition, we are unable to see greater merit in the other point made than in the one just disposed of.

A rehearing is denied.