69 Tex. 100 | Tex. | 1887
The patent to the Wilder one thousand two
The court below instructed the jury as follows: “If no survey has in fact ever been made, yet if the calls in the patent for ■other surveys, and for natural and artificial objects are such that thereby the land conveyed by the patent can be found and identified by other surveys surrounding the same, this, ip law, is a .sufficient description.”
Appellant contends that this instruction is erroneous, because the testimony did not warrant it. As an abstract proposition, we believe the instruction is correct, but we do not think it applicable to the facts of this case. There are no " calls in the patent for other surveys” by which the land “can be identified by other surveys surrounding it.” It is probable that this instruction influenced or mislead the jury, and we think the court «erred in giving it. (Andrews v. Smithwick, 20 Texas, 111; Austin v. Talk, 26 Texas, 127; Andrews v. Marshall, Id., 212.)
It is insisted that the court erred in giving the following instruction: “But, if the testimony fails to satisfy you of the true locality of said Wilder survey, by all the lines and corners, or a sufficient number of them, actually run and marked upon the ground, then you will see if you can identify the same by evidence in regard to other calls, if any, made in the field notes. And if you believe, from the evidence, that some of the' lines and corners of the survey have been proved to be found, marked and established, and there are other lines and corners that, if
Primarily the land granted must be identified by the description given of it in the grant. The dignity or importance of the calls usually employed in the grants, surveys and entries of land have been graded or classified by the courts, and it is now settled that the highest in importance and weight is natural objects, as rivers, creeks, etc.; second, artificial objects, as marked lines monuments, etc.; third, course and distance. But, as said by Justice Roberts in Booth v. Upshur, 26 Texas, 70: "The lowest grade, course or distance, is made to prevail over the highest grade, when, upon applying the calls of the grant to the land, the surrounding and connected circumstances adduced in proof to explain the discrepancy, show that course or distance is the most certain and reliable evidence of the true locality of the grant.” To the same effect are, Booth v. Strippleman, 26 Texas, 441; Stafford v. King, 30 Texas, 257; Davis v. Smith, 61 Texas, 21; Fagan v. Stoner, 67 Texas, 287
If the evidence in the case, from all the surrounding and connected facts and circumstances, satisfied the jury that the true locality of the grant could be more certainly found by running course and distance called for in the field notes from such corners as they might find to be marked and established on the ground than by observing the calls for natural or artificial objects, then it was their duty to have so determined, and they Should have been so instructed by the court. It should not have been left to the discretion of the jury whether they would do so- or not.
We think the court erred in this instruction also, and, for the
Reversed and remanded„
Opinion adopted November 22, 1887.