
    Vittoe v. Richardson.
    1. Practice: findings of commissioner: effect of. In a case not triable de novo, tbe findings of tbe commissioner, after tbe approval thereof by tbe court, have tbe force and effect of a verdict of tbe jury; and when supported by some evidence -will not be interfered -with, unless clearly tbe result of passion or prejudice.
    
      Appeal from Harrison District Court.
    
    Friday, June 9.
    The plaintiff is the owner of the west half of the north west quarter of Sec. 18-79 — 44, and the defendant owns the south-west quarter of said section. The plaintiff filed a petition stating, in substance, that one of the government corners was in fact located south of the Soldier River which runs through the section, but that such Corner could not be found, because all evidence of its actual location was lost,. He therefore asked the court to appoint a commissioner under the statute to ascertain and report as to the location of the lost corner. The defendant claimed the corner was in fact located north of the Soldier, and he united in asking for the appointment of a commissioner. One was accordingly appointed who heard evidence and made a report of his doings to the court. The commissioner recommended that the corner be established north of the Soldier. The report was approved and judgment entered in accordance therewith. The plaintiff appeals.
    
      
      JS. H. Cochrane, for appellant.
    
      Smith & Clyde, for appellee.
   Seevers, Oh. J.

Counsel for appellant have assigned errors and only the questions thereby presented can be considered. In the Matter of the Application of Harrington, 54 Iowa, 33. The appellee insists a , .i/ the errors are not sufficiently specific and therefore do not present any question for determination. With some doubts we hold the errors are sufficiently specific to call attention to the single question pressed in the argument of counsel for the appellant. He maintains the true corner is at the place where the United States surveyor established it whether such location was in fact right or wrong as a subsequent survey might show. This will be conceded. Counsel then proceeded to say: “By an examination of the testimony of Stephen and Chambers Hester * * you will find testimony as positive as mortal man can. mahe it to the effect, that they saw the quarter post on the south side of the Soldier River the fall after the government survey.”

Conceding the evidence of the witness to be of the character stated, and that the commissioner and the court below found against it, the question is whether we can, under established rules, remedy the wrong if there was one. This case is not triable de novo, and therefore the finding of the commissioner and court must have the force and effect of the verdict of a jury. The evidence of said witness related to a period thirty years ago, and there was some evidence supporting the conclusion of the commissioner. It is, and must always be, difficult to locate the true corner when all evidence of its location has been lost. We, therefore, are not disposed to interfere with the finding of the commissioner who has heard the evidence, and been over the ground, when his action has been appi’oved by the court below, unless we are satisfied the commissioner has been governed in his finding by passion or prejudice. This is not claimed, and if it was, it could not be successfully maintained.

Affirmed.  