218 S.W. 632 | Tex. App. | 1920
Lead Opinion
This is a boundary suit, and requires a decision as to whether there is a vacancy between the south lines of sections 1326 and 2328, block 1, H. & O. B. Railway Company surveys, and the north lines of section 403 and section 10, Tyler Tap Railway Company surveys, in Garza county. The appellant L. N. Brooks was awarded, on his
We attach hereto a plat which appellants contend correctly shows the relative position of said sections 1326, 1328, 403, and 10, as they should be located on the ground. We do not adopt the plat as being correct in all particulars, but it may be conveniently referred to in connection with our further statement of the facts, and in connection therewith will be sufficient to a general understanding of the issues to be decided.
The evidence establishes the following facts:
(1)All of the actual surveying upon which the field notes of all of the surveys shown in the plat were based was done by Jasper Hayes, though Such field notes were signed by other parties. The field notes of the sections in block 1, H. & O. B. Railway Company, were signed by Geo. Spiller, the surveyor of Young district. The corners shown on the map as the Gobb corner, Black Bottle corner, and comers D and E, were put in by Jasper Hayes on September 27 and 28, 1877, and the field notes of those surveys upon which we have placed a check mark thus, +, were dated September 27, 28, and October 1, 1877. These corners just referred to are identified on the ground; it appearing that the Oobb and Black Bottle corners were established oh September 27, 1877, and corners H and E on September 28, 1877; the course of the line from the Black Bottle corner to the Cobb corner is N. 89° 10' W.; that from the Black Bottle corner to corner D is S. I 35' E.; and that from corner D to E is off true meridian 13', the evidence not disclosing which way. The courses called for in the field notes of the surveys are north, south, east, and west. There is an excess in the distance called for by the field notes between all the corners except corners D and E. The field notes of sections 1326 and 1328 tie back through their calls and the respective calls of the field notes of intermediate surveys to corners D and E. Both parties assume that they also tie to the Cobb corner. The field notes of intervening surveys necessary to enable us to say definitely whether this is true are not in the record. However, all of the maps introduced in evidence indicate that this is correct, and we will assume that this statement, concurred in by both parties, is correct. A mound is called for at the northeast corner of section 1313, and a pile of stone at the northwest corner of 1225, but these were not found on the ground. There do not appear to be any calls for any marks on the ground in the field notes of any of the other surveys of 1877 except the calls for the corners we have mentioned, and there is nothing to show that the surveyor was on the ground at any other place, and reference to his field book failed to show that he ran any other lines at this time.
(2) In January, 1878, Hayes returned to the vicinity of those lands, and running west from the Cobb corner established on January 10, 1878, corner A; there being an excess of 104 varas in the distance called for between the Cobb corner and corner A. Erom said corner A he ran a line three miles south, thence three miles east, thence south ten miles, where he put in the comer not shown on the map. So far as appears from this record these two corners were the only marks of this survey put in on the ground. The field notes of most of the other surveys not checked by us on the map, and whose numbers run in the twelve, thirteen, and fourteen hundreds, were dated on January 10 and 11, 1878; the locations being in the name of various grantees. The field notes of this January work call -to tie these surveys to the surveys located in September and October, 1877.
(3) In May, 1878, Hayes again returned to this vicinity and put in the Grapevine, Camp Branch, and Annheuser Beer Bottle corners; at the same time he established nine comers north of the Camp Branch corner, including the comers at the northwest corners of sections 1361 and 552, which we have marked E and G. These corners just mentioned are also found on the ground. There Is an excess of 95 varas between the Camp Branch corner and Corner G; 55 varas of this excess being between the Camp Branch corner and comer E. At the same time said
(4) A map entitled “Fannin Scrip, E. L. & R. R. R. R. Co. Sketch,” and purporting to be signed by J. Hayes, was filed in the land office on July 22, 1878. This map shows sections 403 and 404 to lie south of and corner with sections 1324 and 1326. The maps in use in the land office for many years thereafter showed said sections to be thus contiguous.
(5) If the south lines of sections 1326 and 1328 be located by course and distance from corner E, such lines will be several hundred varas north of the north lines of sections 403 and 10, located from corner G and the Grapevine corner, and if the western lines of said sections 1326 and 1328 are located by course and distance from either corner E or the Cobb corner, said western lines will be sieveral hundred varas east of the western lines of said sections 403 and 10.
(6) Corrected field notes of the H. & O. B. Railway Company surveys and of the Tyler Tap Railway Company surveys, including the sections we have referred to by number, were filed in the general land office in 1907; the resurvey being made by W. D. Twitchell, state surveyor. The corrected field notes of said sections 403 and 10, Tyler Tap Railway Company, locate such surveys from the Grapevine corner and corner G. Corner B, marked “Twitchell comer” on the map, was put in at the time of this resúrvey and permanent monuments established at each of the other corners of these surveys. The corrected field notes left no vacancy; the northwest and southwest comers of sections 403 and 1326, respectively, being identical, etc.
Conclusions of Eaw.
Based on the foregoing facts we have reached the following conclusions as to the questions of law involved.
5. The record does not enable us to apply the principles which we have announced so as to definitely locate the south lines of sections 1326 and 1328, with reference to established corners on the ground, so that we might render a judgment here. The only data from which we could so locate these lines is the run of Surveyor Standefer from the northeast corner of section 10, an established corner put in on resurvey, to the southeast corner of section 1227. The courses given in the field notes of this run are not on true course, and evén if we were to take these and have a surveyor correct the run to a true course, so as to get the proper location on the ground of these south lines, there is a discrepancy in the two statements of the courses which would prevent us from doing this. See Statement, pp. 105 to 106, and 114 to 117. For the same reason we are unable to locate on the ground the east and west lines of sections 1326 and 1328 from the Cobb corner.
This general discussion will be a sufficient disposition of the various assignments. It results from what we have said that the judgment should be affirmed in so far as it awards to plaintiff judgment for said section 403, but in other respects it will be reversed and remanded.
áí=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Lead Opinion
This is a boundary suit, and requires a decision as to whether there is a vacancy between the south lines of sections 1326 and 2328, block 1, H. O. B. Railway Company surveys, and the north lines of section 403 and section 10, Tyler Tap Railway Company surveys, in Garza county. The appellant L. N. Brooks was awarded, on his *633 application to purchase said land as being vacant and belonging to the public school fund, a strip of land between the said surveys, which strip of land so awarded is 537 varas wide on the east end and 526 varas on the west, and extends east 2,180 varas from the northwest corner of said section 403. The appellee is the owner of sections 1226, 1228, and 403, and, as plaintiff, recovered judgment against appellants in the court below on the theory that the land claimed by the appellant is a part of said sections 1326 and 1328.
We attach hereto a plat which appellants contend correctly shows the relative position of said sections 1326, 1328, 403, and 10, as they should be located on the ground. We do not adopt the plat as being correct in all particulars, but it may be conveniently referred to in connection with our further statement of the facts, and in connection therewith will be sufficient to a general understanding of the issues to be decided.
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]
The evidence establishes the following facts:
(1) All of the actual surveying upon which the field notes of all of the surveys shown in the plat were based was done by Jasper Hayes, though such field notes were signed by other parties. The field notes of the sections in block 1, H. O. B. Railway Company, were signed by Geo. Spiller, the surveyor of Young district. The corners shown on the map as the Cobb corner, Black Bottle corner, and corners D and E, were put in by Jasper Hayes on September 27 and 28, 1877, and the field notes of those surveys upon which we have placed a check mark thus, +, were dated September 27, 28, and October 1, 1877. These corners just referred to are identified on the ground; it appearing that the Cobb and Black Bottle corners were established on September 27, 1877, and corners D and E on September 28, 1877; the course of the line from the Black Bottle corner to the Cobb corner is N. 89° 10' W.; that from the Black Bottle corner to corner D is S. 1° 35' E.; and that from corner D to E is off true meridian 13', the evidence not disclosing which way. The courses called for in the field notes of the surveys are north, south, east, and west. There is an excess in the distance called for by the field notes between all the corners except corners D and E. The field notes of sections 1326 and 1328 tie back through their calls and the respective calls of the field notes of intermediate surveys to corners D and E. Both parties assume that they also tie to the Cobb corner. The field notes of intervening surveys necessary to enable us to say definitely whether this is true are not in the record. However, all of the maps introduced in evidence indicate that this is correct, and we will assume that this statement, concurred in by both parties, is correct. A mound is called for at the northeast corner of section 1313, and a pile of stone at the northwest corner of 1225, but these were not found on the ground. There do not appear to be any calls for any marks on the ground in the field notes of any of the other surveys of 1877 except the calls for the corners we have mentioned, and there is nothing to show that the surveyor was on the ground at any other place, and reference to his field book failed to show that he ran any other lines at this time.
(2) In January, 1878, Hayes returned to the vicinity of those lands, and running west from the Cobb corner established on January 10, 1878, corner A; there being an excess of 104 varas in the distance called for between the Cobb corner and corner A. From said corner A he ran a line three miles south, thence three miles east, thence south ten miles, where he put in the corner not shown on the map. So far as appears from this record these two corners were the only marks of this survey put in on the ground. The field notes of most of the other surveys not checked by us on the map, and whose numbers run in the twelve, thirteen, and fourteen hundreds, were dated on January 10 and 11, 1878; the locations being in the name of various grantees. The field notes of this January work call to tie these surveys to the surveys located in September and October, 1877.
(3) In May, 1878, Hayes again returned to this vicinity and put in the Grapevine, Camp Branch, and Annheuser Beer Bottle corners; at the same time he established nine corners north of the Camp Branch corner, including the corners at the northwest corners of sections 1361 and 552, which we have marked F and G. These corners just mentioned are also found on the ground. There is an excess of 95 varas between the Camp Branch corner and Corner G; 55 varas of this excess being between the Camp Branch corner and corner F. At the same time said *634
surveyor ran from the Annheuser Beer Bottle corner westward and northward, putting in other corners not shown on the map. A more detailed statement of this further work appears from the opinion of this court in the case of W. R. Standefer v. W. F. Vaighan, No. 1557,
(4) A map entitled "Fannin Scrip, E. L. R. R. R. R. Co. Sketch," and purporting to be signed by J. Hayes, was filed in the land office on July 22, 1878. This map shows sections 403 and 404 to lie south of and corner with sections 1324 and 1326. The maps in use in the land office for many years thereafter showed said sections to be thus contiguous.
(5) If the south lines of sections 1326 and 1328 be located by course and distance from corner E, such lines will be several hundred varas north of the north lines of sections 403 and 10, located from corner G and the Grapevine corner, and if the western lines of said sections 1326 and 1328 are located by course and distance from either corner E or the Cobb corner, said western lines will be several hundred varas east of the western lines of said sections 403 and 10.
(6) Corrected field notes of the H. O. B. Railway Company surveys and of the Tyler Tap Railway Company surveys, including the sections we have referred to by number, were filed in the general land office in 1907; the resurvey being made by W. D. Twitchell, state surveyor. The corrected field notes of said sections 403 and 10, Tyler Tap Railway Company, locate such surveys from the Grapevine corner and corner G. Corner B, marked "Twitchell corner" on the map, was put in at the time of this resurvey and permanent monuments established at each of the other corners of these surveys. The corrected field notes left no vacancy; the northwest and southwest corners of sections 403 and 1326, respectively, being identical, etc.
1. The south lines of said sections 1326 and 1328 should be located by course and distance from corner E. Their western lines should be located by course and distance from the Cobb corner. Since the H. O. B. Railway Company surveys were built up from the lines run by the surveyor from the Cobb corner to the Black Bottle corner and thence south to corners D and E, we think that each of these corners should be regarded in constructing the system of surveys based thereon, so that the surveys of the block will hold the excess east and west between the Cobb corner and the Black Bottle corner and north and south between the Black Bottle corner and corners D and E. But when we go south of corner E there is nothing in the record that will justify giving an excess in the north and south distance calls of the field notes of such surveys. Likewise when we go west of the Cobb corner there is no support for an excess in the east and west lines of such surveys. We cannot continue the excess simply because we may find an excess in the lines which we find were actually run. The excess in these lines is justified only because the call for corners on the ground is superior to the calls for course and distance, but when we pass those corners and find nothing on the ground or other call that will override the calls for course and distance we must then give effect to such calls for course and distance.
2. The call of the T. T. Railway Company surveys, sections 403 and 553, etc., which were surveyed in May after the field notes of sections 1326 and 1328 had been filed in the general land office, cannot locate the lines of the older surveys. When the field notes were made out and filed the land was to be identified and located from them, and subsequent work could not change such location. State v. Post, 169 S.W. 405; Williams v. McLeroy,
3. The question next arises as to whether the course westward from corner E and southward from the Cobb corner, in order to locate the surveys based on this work, should be on a true course. Various suggestions are made by the parties to this appeal as to this question. One is that the south line from corner E should parallel the line between the Cobb and Black Bottle corners and the west line from the Cobb corner should parallel the lines between the Black Bottle corner and corners D and E; another suggestion is that the lines should be run at right angles to the north and east lines as established on the ground by the corners referred to. The law required that the land should be surveyed in a square. Article 5339, R.S. And that was the intention of the surveyor, as evidenced by his field notes. So that it may possibly be true that if the lines actually run had disclosed a uniform variance from the true course this same divergence should be used in constructing the other lines of the block. Note 16a, 9 C.J. 166. But, as we have already noted, there is no uniform variance from true course found in any of the lines actually run. There is a difference in the course of the east line itself and the angle at the Black Bottle corner is not a right angle. Under such circumstances, we think that in locating the surveys of the block the line southward from the Cobb corner and those westward from corners D and E should be run on true course. Gilbert v. Finberg, 156 S.W. 512.
4. If the original survey did not embrace these lands in controversy, the act of the state surveyor in placing them within corrected field notes of such surveys on his resurvey of the lands, and the subsequent approval of these field notes by the land commissioner, did not bind the state and those claiming under it. State v. Post (Sup.)
5. The record does not enable us to apply the principles which we have announced so as to definitely locate the south lines of sections 1326 and 1328, with reference to established corners on the ground, so that we might render a judgment here. The only data from which we could so locate these lines is the run of Surveyor Standefer from the northeast corner of section 10, an established corner put in on resurvey, to the southeast corner of section 1227. The courses given in the field notes of this run are not on true course, and even if we were to take these and have a surveyor correct the run to a true course, so as to get the proper location on the ground of these south lines, there is a discrepancy in the two statements of the courses which would prevent us from doing this. See Statement, pp. 105 to 106, and 114 to 117. For the same reason we are unable to locate on the ground the east and west lines of sections 1326 and 1328 from the Cobb corner.
6. Survey 403 should be located from the Grapevine and Camp Branch corners and corners F and G. The nine surveys, of which 403 is the northeast and 552 the northwest, do truly belong to one system of surveys, and the northeast corner of section 403 should be placed at the intersection of the lines run north from the Grapevine corner and east from corner G. Corner G will hold the excess north and south between it and the Camp Branch corner. The lines of 403, 404, and 552 cannot be extended beyond the points we have indicated to reach surveys 1366, 1324, 1326, and 1328, of the H. O. B. Railway Company surveys, because such construction would disregard the footsteps of the surveyor as evidenced by the mound corner at the northwest corner of section 552, and thus disregard a call for an established corner in favor of a call for an unmarked open line of an adjoiner. State v. Post, 169 S.W. 405; Polk v. Reinhard,
7. Appellee asserts that the sale of the vacant land to appellant Brooks was void because the survey upon which the sale was based was made by the surveyor of the Howard land district, and that he was not authorized to make the survey because it is shown by the maps in evidence that the land is in Garza county. It is true that the maps show the land to be situated in Garza county, though the field notes of the survey call for its location to be in Lynn and Garza counties. As the plaintiff must recover on the strength of his own title, this would not be material in determining whether the plaintiff would be entitled to judgment, but it does become material in consideration of the defendant's cross-action. We think that, even if it be true that the surveyor of the Howard land district had no authority to make the sale, yet no one but the state could question the sale of the land to appellant Brooks on this account. R.S. arts. 5458 and 5459; Erp v. Tillman,
8. We think the objection to the evidence of the witness Marhoff, reproducing the conversation between him and Jasper Hayes on the occasion when Marhoff and Hayes were on the land together in 1912, should have been sustained. It appears that said Hayes was alive and his place of residence known to plaintiff, and it does not appear that his testimony might not have been obtained. Declarations made by the original surveyor at the time of the survey might be admissible as res gestae, even if the surveyor were living; but such declarations subsequently made are hearsay, and to be admissible must be brought within some recognized exception to the hearsay rule. George v. Thomas,
This general discussion will be a sufficient disposition of the various assignments. It results from what we have said that the judgment should be affirmed in so far as it awards to plaintiff judgment for said section 403, but in other respects it will be reversed and remanded.
Lest we be misunderstood, we wish to say again that we do not adopt the plat attached to the opinion as being correct in all particulars. That part of the map which shows a separation of the surveys made in 1877, beginning with sections 1212 and 1218, and thence westward, is at variance with all other maps in evidence and theories as to the construction of the surveys, and we do not wish to be understood as approving such location of those lands. Our opinion has been written on the assumption that there is no such break in the construction of those surveys.
We have on original hearing duly considered all the suggestions made by the appellee in his motion for rehearing and no good purpose would be served by again reviewing them, as we believe that we have announced the proper method of locating the surveys in question according to the record presented to us.
*638The motion for rehearing will be overruled.
Rehearing
On Motion for Rehearing.
Appellant seems to be in some confusion as to our directions as to the method of locating sections 1326 and 1328. To be specific, the northeast corner of section 1313 should be located at the intersection of a line run south from the Cobb corner with a line run west from comer E, and surveys 1326 and 1328 should be located from this position of section 1313 by true course and distance according to the calls of their field notes and those of the ■ intervening surveys back to said section 1313. These specific instructions are given on the theory that the field notes of the surveys of 1877 would by their calls locate the northeast corner of section 1313 south of the Cobb comer. As we stated in the original opinion, the field notes of all intervening surveys back to - the Oobb corner do not appear in the record, so that our assumption that such field notes would so locate the northeast corner of 1313 with reference to the Cobb corner is based on the maps in evidence and general' inferences to be drawn from the record. If this assumption should be proven to be erroneous, then the east and west position of said northeast corner of said section 1313 would be shifted according to the distance east or west of the line run south from the Cobb corner that it should be located according to the calls of its field notes and those of the intervening surveys, tying back to the said Cobb comer.
Lest we be misunderstood, we wish to say again that we do not adopt the plat attached to the opinion as being correct in all particulars. That part of the map which shows a separation of the surveys made in 1877, beginning with sections 1212 and 1218, and thence westward, is at variance with all other maps in evidence and theories as to the construction of the surveys, and we do not wish to be understood as approving such location of those lands. Our opinion has been written on the assumption that there is no such break in the construction of those surveys.
We have on original hearing duly considered all. the suggestions made by the appellee in his motion for rehearing and no good purpose would be served by again reviewing them, as we believe that we have announced the proper method of locating the surveys in question according to the record presented to us.
The motion for rehearing will be overruled.