
    A. H. Keller and M. K. Whitney v. T. W. Harrison and George Telford, Appellants.
    1 Real property: adverse possession. One in possession of a tract of land under a claim that it formed part of a certain government subdivision, when it in fact was part of another subdivision, can not acquire title by adverse possession so as to defeat an action in ejectment by .the owner; as there must have been an entry and ouster of the true owner to start the statute of limitations.
    2 Same: ejectment: limitations: evidence. The recorded plat and field notes made by a county surveyor are merely evidence of the location of the lines and corners, though not conclusive, of which no one is charged with constructive notice, and they do not constitute any link in the chain of title or afford information as to who may be in possession; and the fact that the record thereof has existed for many years will not bar an action by the true owner for the possession of the land.
    3 Same: laches. The defense of laches is an equitable one arising only where from lapse of time and neglect of plaintiff it would be inequitable to permit him to enforce his legal rights; and to be available the defense must be pleaded.-
    4 Mortgages: foreclosure: title. Where no sheriff’s deed was issued in a mortgage foreclosure proceeding the title of the owner who acquired an assignment of the certificate of sale was not divested.
    5 Real property: surveys : evidence. Diagrams prepared by a county surveyor to illustrate a prior survey, shown by him to be correct, are receivable in evidence to aid the court and jury in more clearly understanding and applying the evidence, and to explain the effect of a subsequent survey.
    6 Ejectment: evidence. In an action for the possession of a tract of land claimed by the plaintiff as part of a certain subdivision, while it in fact belonged to another subdivision, evidence that another party had purchased land in the county which upon meaurement exceeded the proper acreage was immaterial and properly excluded.
    7 Same: trial: view of premises: instruction. The purpose of permitting a jury to view the premises is to enable them to better understand the testimony and thus make a more intelligent application of the evidence to the issues; but they are to consider the evidence in the light of their view of the premises and base their verdict on the evidence and not upon the view, and they should be so advised by the court. In this case the fact that the jury while viewing the premises had with them photographs offered in evidence and undertook to ascertain points from which they 'were taken so as to understand their applicability, and also made measurements from undisputed locations not materially differing from the evidence, while perhaps improper, wa's not prejudicial; and for that reason the omission to instruct with reference to their duty in viewing the premises was without prejudice.
    8 Expert evidence: fees. In making a survey and investigating one already made a surveyor is conducting a scientific examination, within the meaning of Code, section 4661, and when called as a witness to state the results is entitled to the fees allowed experts.
    9 Appeal: judgment: taxation of costs: review. An appeal from a final judgment and also from an order taxing the costs of a continuance may be taken in the same case, and the appellate court will consolidate them when separately appealed and- review all errors assigned as on an appeal from final judgment.
    
      10 Same: taxation of costs: waiver of objections. A party accepting a continuance at his request, but objecting to the terms imposed, does not waive his right to question the validity of the terms on appeal, because exceeding those authorized by statute.
    11 Same: continuance of cause: taxable costs. The costs which may be taxed against a party applying for continuance of a cause are only such as are taxable under the statute; they do not include attorney’s fees or expenses of travel of a party, except on subpoena.
    Weaver, J., dissenting.
    
      Appeal from Palo Alto District Court. — Hon. D. F. Coyle, J udge.
    Tuesday, December 13, 1910.
    Action in ejectment for the possession of a strip of land and damages for its wrongful detention. Trial to jury resulted in a judgment as prayed. The defendants appeal.
    
      Affirmed.
    
    
      Dwight Q. McCarty and T. W. Harrison, for appellants.
    
      D. A. and W. H. Morling, for appellees.
   Ladd, J.

The facts are recited with sufficient fullness in the opinion rendered on the former appeal, 139 Iowa, 383, and though witnesses who had not testified on the first trial were called, the additional evidence was not such as to exact any change from the conclusions therein announced. . Hpon remand, defendants filed an amendment to the answer pleading that the action was barred by the statute of limitations in that more than ten years had elapsed since it might have been maintained. The issue so pleaded was not submitted to the' jury and of this complaint is made.

I. The survey by defendant Harrison, as county surveyor, was made in 1873, and he has been in possession of the twenty acres in dispute since that time. As such possession was under claim to it as part fh® N. W. % of section 28, it was on the former appeal that if this strip was not a portion thereof, but was a part of the N. E. % of that section, his possession could not have been adverse. Such has been the doctrine of this court since Grube v. Wells, 34 Iowa, 148, which was followed in Fisher v. Muecke, 82 Iowa, 547; Goldsborough v. Pidduck, 87 Iowa, 599; Skinner v. Crawford, 54 Iowa, 119; Wacha v. Brown, 78 Iowa, 432; Heinz v. Cramer, 84 Iowa, 497, and Jordan v. Ferree, 101 Iowa, 444.

These decisions proceed on the theory that the possession must be adverse in order to start the running of the statute of limitations, and this was recognized in Grube v. Wells, citing authorities holding that before a party may avail himself of that statute as a defense in an action of right, there must have been an entry and an ouster of the true owner for that until disseisin any possession of another is presumed to be subservient to his title, and, regardless of the time of its continuance, will not operate to bar recovery by the title holder. Jones v. Hockman, 12 Iowa, 101; id., 16 Iowa, 487; Wright v. Keithler, 7 Iowa, 92. Neither party has noticed these cases in the briefs, and as they have stood unchallenged for nearly fifty years, we are not inclined to reconsider them. See note to Jasperson v. Scharnikow, 150 Fed. 571 (15 L. R. A. (N. S.) 1178). There was no error in not submitting this issue to the jury.

II. Appellant argues that inasmuch as the field notes and plat made by the county surveyor were required to be recorded and his surveys are declared by J u statute “presumptively correct” (section 534, Code), and, as between specified persons, a certified copy of the record is made “presumptive evidence of the survey and of the facts herein required to be set forth” (section 538, Code), the recording of defendant’s survey should be held to have carried notice to all the world of his claim to the strip of land in dispute, and the statute be held to have begun to run then, or, at least, when by the exercise of reasonable diligence the error, if any, in the survey might have been discovered. But such a record is not of any link in the chain of title nor does it give information as to who may be in possession. It is merely evidence of the location of the lines and corners, though not conclusive, of which no one is charged with constructive notice. The object in recording is to preserve the evidence which has no bearing on ownership, possession, or title, save as these may tend to show the true location of the boundaries between the several tracts of land. The point is not well taken.

Nor is there anything in the suggestion that the action was barred because of laches. The discrepancy between the line as located by defendant’s survey and the true line, if any, was not discovered until shortly before this action was begun, so that abandonment of all claim to the strip in dispute could not well be presumed. Moreover, the doctrine of stale demand is a purely equitable one, arising only when from lapse of time and the laches of plaintiff it would be inequitable to allow a party to enforce his legal rights, and as no equitable defense was pleaded, it was not available to defendant. McFarlane v. Grober, 70 Ark. 371 (69 S. W. 56, 91 Am. St. Rep. 84); Wilson v. Nichols, 72 Conn. 173 (43 Atl. 1052); Ellis v. Smith, 112 Ga. 480 (37 S. E. 739); Bank v. Baker, 176 Mass. 294 (57 N. E. 603); Wood on Limitations, section 60.

III. The plea in abatement is without support in the evidence. A mortgage on the land was foreclosed, the land sold thereunder, and a certificate of sale issued. Subsequently, it was assigned to the plaintiff Keller. No sheriff’s deed was issued and therefore the title of plaintiffs never was divested. Some reliance ap- , . ' . . . , . pears to have been placed on a plea 01 estoppel, but that was disposed of by 'the answer of the jury to a special interrogatory.

IV. The county surveyor, Leroy Grout, since deceased, prepared diagrams illustrating the survey as made by the defendant in 1873 and recorded. His testimony that these were accurate was uncontradicted, and as the lines of defendant’s survey as appeared on the plat accompanying it did not indicate any discrepancies or irregularities in the different subdivisions, these diagrams aided the court and jury in more clearly understanding and applying the evidence adduced. Moreover, Grout testified as an expert, and by these diagrams he was able more clearly than by word of mouth to explain the survey as effected by the defendant. There was no error in receiving them in evidence. East Tenn., V. & G. Ry. v. Watson, 90 Ala. 41 (7 South. 813); Riddle v. Germantown, 117 N. C. 387 (23 S. E. 332); Blair v. Pelham, 118 Mass. 420; Brantly v. Huff, 62 Ga. 532.

V. Objection was sustained which was interposed to the testimony of a witness that he had bought a quarter section in the county as one hundred and sixty acres, and upon survéy it measured one hundred and ninety acres. The ruling was right. The testimony had no bearing on the issues being tried.

VI. At the conclusion of the evidence, the jury were allowed to view the premises, being conducted by the sheriff, accompanied by the judge. This was hy consent, the court saying to the jury before departing from the courtroom:

Gentlemen of the jury, I am about to excuse you until one o’clock this afternoon, at which time you will appear here to be conducted in a body to view the premises in dispute between the parties to this action. The statute provides that you shall be conducted by an officer to the place to be viewed, which shall be shown to you by some person appointed by the court for that purpose. The parties in this ease have agreed that the court himself may go with you and act as the person to show you the premises. The statute further provides that when you are thus absent viewing the premises that no one save the person selected to show the premises to you shall speak to you on any subject connected with the trial. It will therefore be your duty while viewing the premises to refrain from conversing with anybody in relation to the matters in trial, and to reach your own conclusions' from the view of the premises that you make.

This was not excepted to, and its only bearing is with respect to the court’s omission to refer to the subject in the instructions subsequently given. After the verdict had been returned, it was made to appear, in support of the motion for new trial, that two of the jurors took measuring lines with them, and upon reaching the premises tied these together and first measured on the north section line from the end of the fence defendants had constructed on what they claimed was the boundary to the stake set by Grout, as marking the true quarter corner, to see, as they explained, if it was the real post, from which they might take their views, and they also measured from what they supposed was the northeast corner of the section over to the end of Harrison’s fence mentioned, and from thereon west to the end of a division fence in the section north and opposite the line as claimed by plaintiffs, and then on to what they supposed to be the northwest corner of the section. Two other jurors kept tally and they made out that the north sectional line overran a mile a little. The jurors testified that the purpose of these measurements was to find the locations referred to in the testimony and that they were not discussed save in making them. The jurors also had different photographs of the premises which had been introduced in evidence with them and undertook to ascertain the points from which taken, so as to understand their applicability. Though taking these photographs with them may not have been regular, the jury, to apply the evidence, might have sought to ascertain the places from which taken had these not been with them, and while their conduct in this respect is not to be approved, it must have been without prejudice.

Nor are we inclined to regard the making of the measurements as prejudicial. There was no dispute as to the location of defendant’s fence or the stake as set by Grout, or of the division fence in the section to the north, or as to the distance between the section corners, and the measurements developed no differences material to the issues being tried. We do not say such conduct is to be approved. On the contrary, it should have been guarded against by appropriate admonitions, before viewing the premises, as to the object to be accomplished in doing so. As said in Close v. Samm, 27 Iowa, 503, this “was to enable the jury by view of the premises or place to better understand the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both .parties, and in respect to which no opportunity to cross-examine or correction of error, if any, could be afforded either party.” See Moore v. Ry., 93 Iowa, 487; Mier v. Phillips Fuel Co., 130 Iowa, 570. The jurors are to consider the evidence in the light of their view of the premises, but base their verdict on the evidence, and not on the view. Thompson v. Keokuk, 61 Iowa, 187; Guinn v. Ry., 131 Iowa, 680.

In Morrison v. Railway 84 Iowa, 663, it was said that, “When a view is permitted, the jury should not only be instructed as to the purpose, but cautioned not to consider their own observations as evidence. It is upon the evidence as understood in the light of their view that they must decide.” This was said in denouncing an instruction given as erroneous; the point as to whether the court was required to instruct on the subject not being raised. This was pointed out in Cox v. Railway, 95 Iowa, 54, where the court held an instruction not to have been necessary though desirable, where the jury had been previously admonished concerning the object and purpose of making the view. But it was not held that in event no such admonition has been given, it would be error not to give such an instruction, unless requested. Viewing the premises, is but an incident of the trial with the design of aiding the triers the better to discharge their duties, and whether to guard against the use of what was observed an instruction is essential, necessarily depends largely upon the nature of the case. Where the conclusion of the jury, as finally expressed in the verdict, must necessarily rest on evidence of conditions, conduct, and events preceding the view by many years and all that could have been observed by them was the topography of the land in the neighborhood of the disputed lines and corners and the trees and fences thereon, it would seem that no instructions were needed to limit the consideration of what might be seen to a better understanding and application of the evidence adduced. To what other purpose might it have been put? An examination of this record affords no answer to this inquiry, and for that -reason we are inclined to regard the omission to instruct as without prejudice.

VII. Exception is taken to an order taxing fees allowed an expert in favor of Grout on the first trial. The record disclosed that as county surveyor, he surveyed the premises and investigated the survey as made by defendant and testified concerning both. Section 4661 of the Code provides that “witnesses called to testify only to an opinion founded on the special study or experience in any branch of science or to make scientific or professional examinations and state the result thereof, shall receive additional compensation to be fixed by the court with reference to the time employed and the degrees of learning and skill required, but such additional compensation shall not exceed four dollars per day while so employed.”

Friday, May 12, 1911.

In making the survey and in investigating defendant’s survey, Grout conducted a scientific examination, and as a witness was called upon to state the results, and this clearly was within the meaning of the statute. See Lyon v. Wilkes, 1 Cow. (N. Y.) 591. Other errors assigned require no consideration.

Having discovered no prejudicial error in the record, the judgment is affirmed.

SUPPLEMENTAL OPINION.

Ladd, J. —

I. After, appeal had been perfected in the above-entitled case, another appeal was taken from an order taxing certain costs and expenses to defendant Harrison, upon sustaining a motion for continuance. These appeals were prosecuted and sllhmitted separately to this court, and separate opinions filed. Petitions for rehearing have been submitted, and that assailing the above opinion is overruled, and the other petition is sustained, not owing to any change in the views expressed by the majority or by those dissenting, but for the reason that both appeals are in the same cause, and, though presented in separate abstracts and arguments, should have been considered and disposed of as merely bringing distinct portions of the same record to the attention of this court. Had the abstract in the second been incorporated in the first appeal, this could not well be questioned. That the two abstracts were bound separately ought to make no difference. We are the more inclined to this view because of the differences of opinion as to whether an interlocutory order taxing costs is appealable; four justices being of the opinion that it is not appealable, and the other two that it is. It ought not to be said, then, that there was not some ground for the course pursued by counsel for appellant in prosecuting separate appeals, when all errors in the record might have been reviewed on a single appeal. As on the appeal from the final judgment, every exception saved might have been presented, we have concluded that the court on its own motion should have consolidated the appeals which were pending and submitted. at the same time, and reviewed the errors assigned and argued as though all the abstracts and arguments had been filed in the appeal from the final judgment. This is saying no more than that the printing of portions of the record in different abstracts, though irregular, will not deprive a party of having the errors assigned and argued in either reviewed.

II. The cause had been noticed for trial at the December, 1908, term of the district court, and, after motion for change of forum had been overruled, defendants applied for a continuance, on the , _ ground that one oi them, Harrison, had suddenly become too ill to proceed with the trial. Objections thereto were interposed, but on full hearing a continuance was ordered, on condition that said defendant pay the taxable costs of the term, amounting to $19.50, the expenses of plaintiff in attending court in the sum of $144, and $25,for plaintiff’s attorney as compensation for resisting the motion for continuance. A judgment was entered against said Harrison for the aggregate amount of these sums. The record does not show acceptance or acquiescence in the condition on his part. He excepted to the ruling, and when the statute defines the terms on which a continuance may be granted acquiescence in the order postponing the trial does not estop the moving party from challenging the legality of the terms imposed. Our statute, in designating the terms on which continuances may be ordered, by fair implication excludes authority to impose others, and if others are named as conditions upon which the order is entered these are in excess of authority, and may be challenged as any other like rulings. The trial ought not to be postponed, unless the party applying is entitled thereto, and that he acquiesces in that portion of the order rightfully entered ought not to interfere with taking exception to another portion, which the court erroneously has included. There are some decisions seemingly to the contrary, but which will be found on examination, to proceed on the theory that as the court might impose terms within its discretion, the party on whom these have been imposed may not, after accepting them, assail the order as an abuse of discretion. ' Thus Brown v. Warren, 17 Nev. 417 (30 Pac. 1078), follows the decisions of New York, where the statute expressly authorizes the court, as a condition of postponing trial, to impose reasonable terms, and it is said that if the mover does not like the terms imposed he should not take the rule. The Alabama cases proceed on the same theory. Rhea v. Tucker, 56 Ala. 450. In this state the terms on which a continuance may be granted are defined, and as any others are in excess of the court’s authority acquiescence in the order is not to be presumed to extend beyond its lawful conditions. The cause was tried at a subsequent term of court, and a judgment entered on the merits, as appears in the foregoing petition. Was it error to tax the costs, expenses, and attorney’s fees as above stated?

The only provisions for the taxation of costs upon the continuation of an action on application are found in sections 3662 and 3671 of the Code. The former provides that: “When time is asked for making application for continuance, the cause ^ ¡oge piace 011 oalendar, or it may be continued at the option of the other party, and at the cost of the party applying therefor, for which cost judgment may at once be entered by the clerk, unless the contrary be agreed between the parties or ordered by the court.” The latter reads: “Every continuance granted shall be at the cost of the party applying therefor unless otherwise ordered by the court.”

It will be noted that in neither section is anything but the costs of the action referred to, and we think by costs is meant the taxable costs in the case. At the common law, costs were not recoverable eo nomine. If the plaintiff failed to recover, he was punished by amercement for false clamor, and if the judgment was entered against defendant he was punished at the court’s discretion by exacting payment of the costs of litigation. Later the matter was regulated by statute, and it is now quite generally held that the word “costs” has a legal signification, and that it includes only those expenditures which are by statute taxable, and to be included in the judgment. State v. Board of Commissioners, 14 Ohio Cir. Ct. R. 26; Musser v. Good, 11 Serg. & R. (Pa.) 247; Studwell v. Cooke, 38 Conn. 549; Apperson v. Insurance Co., 38 N. J. Law, 388; Neher v. Crawford, 10 N. M. 725 (65 Pac. 156); City of St. Louis v. Meintz, 107 Mo. 611 (18 S. W. 30); Johnson v. Railway, 29 Minn. 425 (13 N. W. 673); Bennett v. Korth, 37 Kan. 235 (15 Pac. 221, 1 Am. St. Rep., 248); Noyes v. State, 46 Wis. 250 (1 N. W. 1, 32 Am. Rep. 710); 24 Cyc. 24 et seq. It is elementary that attorney’s fees and expenses of travel of a party, save on subpoena, are not taxable costs within the meaning of the statute defining what costs may be taxed, and for this reason the court erred in including these in the judgment entered in ordering a continuance of the action. The judgment on the merits was rightly affirmed, but the taxation of costs will be modified by eliminating the items last mentioned. Modified and affirmed.

Weaver, J.

(dissenting). — The authority of the court to impose terms upon an order for continuance is inherent, and there was no error in requiring the moving party to pay the reasonable expenses incurred in preparation for trial. 4 Ency. Pl. & Pr. 888; 9 Cyc. 151. The defendant, by availing himself of the order of continuance, waived the right to question such order on appeal. 9 Cyc. 152; Humes v. O’Bryan, 74 Ala. 64; Rhea v. Tucker, 56 Ala. 450; Brown v. Warren, 17 Nev. 417 (30 Pac. 1078). See, also, as to this and other phases of the subject: Robinson v. Railroad Co., 73 Iowa, 506; Pomeroy v. Bell, 118 Cal. 635 (50 Pac. 683); Barney v. Love, 101 Mich. 543 (60 N. W. 58); Lewis v. Wood, 42 Ala. 502; Baumberger v. Arff, 96 Cal. 261 (31 Pac. 53); Burton v. Power, 4 Tex. 380; Knox v. Arnold, 1 Wis. 76; Hamilton v. Cooper, Walker (Miss.) 542 (12 Am. Dec. 588); Gilliland v. Rappleyea, 15 N. J. Law, 138; Walker v. Greentree, 12 N. C. 367; McFarlane v. Moore, 1 Tenn. 32 (3 Am. Dec. 752).

That attorney’s fees and personal expenses are “taxable costs” I do not contend; nor do I argue that the “costs” mentioned in the statute include items of that character. The power for which I contend is inherent in the court, and the Legislature has never attempted to limit or take it away. All that section purposes to do is to designate the party to whom the taxable costs shall be charged, unless otherwise ordered by the court. It in no manner takes away or limits the time-honored authority of the court to attach other reasonable terms to the granting of an order of continuance. The majority does not speak quite advisedly when it says that the authorities relied upon by me ’ are all from jurisdictions whose statutes are broader than our own. By way of illustration, I call attention to the state of California, which has a statute practically the same as our own, and there it has frequently been held that the imposition of such reasonable terms in excess of taxable costs is not an abuse of the court’s authority. See Pomeroy v. Bell, supra; Baumberger v. Arff, supra.

For the reasons suggested, and because I think this decision works the surrender of an important judicial power for the due administration of justice, I dissent.

Friday, May 12, 1911.  