44 Tex. 638 | Tex. | 1876
The shape of the tract of land included in the Reels grant was intended to be a square.
This is shown by both the original field-notes, as shown by the survey in Colorado county, and the patent. The patent to the heirs of Reels does not' purport to convey, and in fact does not convey, any more or different land than is covered by the original field-notes as recorded and on file in Colorado county. In the patent and field-notes of the survey the length of the lines of the four sides are the same.
The difficulty grew out of the course of the second line. It should have been south 56° east, whereas it is south 85° east. The' distance, however, is the same, and hence there is no way by which the lines could ever be closed except by prolonging the second and third lines. The error has occurred, of course, either in the surveyor’s office at Columbus or in the General Land Office. It is so obviously a mere clerical error that any one searching for the truth would detect it as readily as the mind would supply a single word in a sentence, and read it as though the ellipsis did not exist.
The general proposition intended to be laid down to the jury in the charge of the court might be correct, but when applied to the facts of the case it is wholly incorrect.
In Hubert v. Bartlett, 9 Tex., 103, Judge Wheeler said: “ When the calls lead to conflicting results, that must be adopted which is most consistent with the intent apparent on the face of the grant.” In Welder v. Carroll, 29 Tex., 323, the court say: “ The entire description in a patent must be taken, and the identity of the land ascertained by a reasonable construction of the language used.” “ Natural objects are mountains, lakes, rivers, creeks, rocks, and the like. Artificial objects are marked lines, trees, stakes,” &c. “ The first of these controls the second, and the second controls courses and distance merely.”
“A correct location consists in the application of any one or all these rules to the particular case; and when they lead to contrary results, that must be adopted which is most consistent with the intention apparent on the face of the patent.” (McCulloch v. Richardson, 1 McCord, 167.) It will therefore often occur that course and distance.will control-natural objects, as where it is apparent on the face of the grant that these were inserted by mistake. (Newsom v. Pryor, 7 Wheat., 7.) The entire description in a patent must be taken and the identity of the land ascertained by a reasonable construction of the language used, as stated in Carroll v. Welder.
It was the duty of the surveyor to survey the land for the Reels heirs in a square; and when it is seen that the four side lines are the same length, can it be possible that any one was misled or did not know at once that the variation from 56° to 85° in the course of the second line was a mere clerical error, and that the patent should be read, “ south 56° east” instead of “south 85° east.” This would close the survey and leave it in a square. This result follows as certainly as though the beginning corner had been an immovable natural object.
Suppose the beginning corner to have been an unmistakable natural object, and the calls had been correct except the last course, which deflected so as to leave a gap of half a mile not closed, and the call had ended, “ to the beginning corner of this survey,” would any one have been misled ? and would this have been more certain than the case before us ?
This is not a case of conflict, nor is it a contest between an elder and a junior patent. It is an error that corrects;
Reversed and remanded.
