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08/09/83 DELMAR L. D. HAVERKAMP v. GILBERT A.

August 9, 1983

DELMAR L. D. HAVERKAMP, ET AL., PLAINTIFFS-RESPONDENTS,
v.
GILBERT A. BUESCHER, ET AL., DEFENDANTS-APPELLANTS.



From the Circuit Court of Warren County; Civil Appeal; Judge Kathie B. Guyton; Reversed and Remanded With Directions

Before Snyder, P.j., Dowd, C.j., Gaertner, J.

The opinion of the court was delivered by: Snyder

This is an appeal from a judgment of the Circuit Court of Warren County, decreeing the location of the common boundary line between tracts of land owned by the parties. The judgment is remanded with directions.

Respondents' 102-1/2 acre parcel of land was originally part of a 144 acre tract in the vicinity of Hopewell. The 102-1/2 acres was conveyed by Gerhard and Marie Engle Hackmann to Friedrich "Fritz" Buescher in 1882. After various changes of ownership the 102-1/2 acres of farm land was quit claimed in 1950 to Delmar L.D. and Erma Lou Haverkamp, respondents in this action.

Appellants' parcels of land were originally part of a twenty-nine acre tract. Samuel and Rosie Buescher conveyed this twenty-nine acre parcel to Florence Buescher in 1930. *fn1 Florence Buescher and his wife, Freda, transferred ownership of the twenty-nine acres to Charles and Amanda Krueger by general warranty deed in 1938. The Kruegers' heirs conveyed the real estate to the Aspenhof Corporation in 1970 by general warranty and quit claim deeds. The Aspenhof Corporation then conveyed 11.51 acres from the southwest portion of the twenty-nine acre tract to appellants Gilbert A. and Leona Buescher by means of warranty and quit claim deeds in 1970 and 1973. The southernmost 7.4 acres of the 11.51 acre tract was conveyed in 1978 by the Bueschers to appellant D. Shane Bunge also by means of warranty and quit claim deeds.

The parties share a common boundary which is the source of their dispute. Part of the eastern boundary of the Haverkamps' 102-1/2 acre tract of land is also the western boundary of the Buescher and Bunge parcels of land. The common boundary line lies near Hopewell Creek, which flows generally from northwest to southeast.

A not to scale sketch is shown below as an aid to understanding the general description of the parcels and boundary in dispute. The sketch was copied from the Morsey survey, infra:

[]

Appellant Bunge and the Haverkamps also share a common corner. The respondents' southeastern corner property is also appellant Bunge's southwestern corner. This common corner is the southern terminus of the common boundary and lies near the confluence of Hopewell Creek and Dry Fork Charrette Creek. The exact location of the corner was another fact in dispute.

The disputed boundary line was first surveyed in 1849 by a Mr. Morsey, who was the Warren County surveyor, as part of a survey of the 144.1 acre parcel out of which respondents' land was later conveyed. Although Mr. Morsey's field notes contain no reference to Hopewell Creek, his plat, which was apparently not drawn to scale, shows the northern terminus of the line falling in the creek bed. The southern terminus, which is the southeastern corner of respondents' 102-1/2 acres and Bunge's southwestern corner, is shown on the west side of the creek. The boundary line is given a bearing of south 37-1/2 degrees east.

The next relevant survey was performed in 1943 by Ben Fricke, who was also the Warren County Surveyor. Mr. Fricke surveyed land south of respondents' 102-1/2 acres, but while doing so set the southeast corner of respondents' 102-1/2 acre farm on the east bank of Hopewell Creek.

When the heirs of the Kruegers conveyed their twenty-nine acre parcel of land to the Aspenhof Corporation, the western boundary of the tract (which is also part of respondents' eastern boundary) was surveyed by Herbert W. Zuroweste, a private surveyor. This western boundary became the western boundary of appellants' tracts which is now in dispute. Mr. Zuroweste set the southwestern corner of what is now appellant Bunge's 7.4 acre tract in Hopewell Creek and gave the western boundary line a bearing of north 42 degrees 32' west.

After Mr. Zuroweste surveyed the tract of land, the warranty deeds in appellants' chain of title described the western boundary of the twenty-nine acres according to Zuroweste's survey instead of referring to the land owned by Fritz Buescher. Appellants Buescher and Bunge and their predecessors in interest, however, believed that Zuroweste located the disputed boundary line too far east of its actual location, thus diminishing the area conveyed by the deeds.

To correct this perceived error, the land between Zuroweste's boundary line and the east bank of Hopewell Creek was conveyed through a quit claim deed by the heirs ...


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