Castleman v. Pouton, 51 Tex. 84

Castleman v. Pouton

51 Tex. 84 | Tex. | 1879

Gould, Associate Justice.

There was evidence of corners and a partly-marked line corresponding with the calls in the Ryan patent, other than the calls for the Hope survey. From this evidence, as well as from the great discrepancy between the distance called for and the distance required to reach the *88Hope survey, the court below, passing (instead of a jury) on the facts, appears to have concluded that the surveyor, in making the Kyan survey, mistook this partly-marked line for the eastern line of the Hope survey. The question was not purely one of law, to be decided according to the precedence to be given to the different calls, but was a mixed question of law and fact, in determining which, both the rules of law and the evidence as to the footsteps of the surveyor were to be considered. (Booth v. Upshur, 26 Tex., 71; Booth v. Strippleman, 26 Tex., 441; Burnett v. Burriss, 39 Tex., 502; Browning v. Atkinson, 37 Tex., 659; Jones v. Burgett, 46 Tex., 292.)

In view of the difficulty of believing that in measuring a line of eight hundred and eight varas a surveyor could commit a mistake of about six hundred varas, so as to enlarge a survey intended to embrace but four hundred and twenty-one acres to over seven hundred acres, and of the facility with which a marked line parallel to the east line of the Hope survey might be mistaken for that east line, we are of opinion that the additional evidence was sufficient to support the judgment treating the calls for course and distance as, under the surrounding circumstances, the controlling calls.

It may he that the western lines of the Byan survey were never actually run out; hut it cannot be assumed that the surveyor thus failed to do his duty; nor, if that assumption could be entertained, would it change our opinion as to the proper disposition of the case.

The judgment establishes that there was no conflict between the two grants; and that fact being established, there was no other question in the case.

The judgment is affirmed.

Affirmed.