Adjoining landowners could not locate a government corner. The lower court ruled that the location of the corner must be proven by a preponderance of evidence or title can be quieted without a legal proceeding to establish the corner. The Supreme Court overruled the lower court stating an obliterated corner does not affect the plaintiff’s right to recover all the land owned by him. The exact location of the corner may be determined by the jury from the evidence in an action at law, and it is unnecessary first to establish the corner by an action in equity. Kittell v. Jensen, 37 Neb. 685, 56 N.W. 487 (1893). See also Stryker v. Meagher, 76 Neb. 610 107 N.W. 792 (1906); Reed v. Burrell, 77 Neb. 76, 108 N.W. 155 (1906); Baty v. Elrod, 66 Neb. 735, 92 N.W. 1032 (1902), aff’d, 66 Neb. 744, 97 N.W. 343 (1903).
Southern landowners who brought action to settle boundary dispute with northern landowners and presented testimony of surveyor and copy of his survey had sustained their burden of proof with respect to where boundary line should be, absent proof that boundary was elsewhere due to adverse possession by northern landowners, even though survey had not been filed in survey record repository within 90 days of completion of survey and was thus not official record of survey entitled to legal presumption that it was evidence of facts stated within survey. Matzke v. Hackbart, 224 Neb. 535, 399 N.W.2d 786 (1987). Neb.Rev.St. Secs. 34-301, 81-8,122.01.
SEE ALSO EVIDENCE – EXPERT WITNESSES