61 Tex. 18 | Tex. | 1884
This. suit grew out of a disagreement between the plaintiff and defendant as to the beginning corner of the J. D. Parker grant,.under which the plaintiff claimed title to the land in controversy. This corner is described in that grant as being two hundred and thirty varas south of the southeast corner of G. Pose’s pre-emption claim, and a mound was made by the sur-, veyor to identify it, there being no timber convenient for bearing trees. The first line of this survey is described as running east nine hundred and five varas to a mound made by the surveyor seventy varas west from a spring called Hogallas spring.
The plaintiff below claimed that if the southeast corner of the Pose pre-emption could not be identified by any natural or artificial objects, from which the two hundred and thirty varas could be run to fix his beginning corner, the true method of finding it was to reverse the course of the first line, and begin at the second corner, which could be easily identified, and run nine hundred and five varas, and then establish the initial point of the survey.
The defendant, who claimed under the adjoining Kilgore survey, contended that inasmuch as the southwest corner of Rose was well defined and marked, as well as the two preceding corners and the lines between them, his (Rose’s) southeast corner must be ascertained by running the course and distance called for between the latter and said southwest corner. This would locate the southeast corner of the Pose pre-emption some three hundred and fifty-seven varas west of the point where the plaintiff’s method of finding his beginning point would place it, and give to the defendant the land in controversy.
There is no principle better settled than that where course and distance are in conflict with the natural or artificial objects called for in a survey, the former must yield and the lines of the land be determined by the latter. Stafford v. King, 30 Tex., 257; Hubert v. Bartlett, 9 Tex., 103.
It is also held in the same connection that the beginning corner of a survey is of no higher dignity or importance than any other; and where the natural object called for is found at any corner, the lines of the survey may be determined by commencing at that point instead of the beginning corner. Phillips v. Ayres, 45 Tex., 601.
Whilst the method for which plaintiff contends seems to be the correct one under the rules of law already stated, in the present case it has additional reasons to support it.
It appears from the evidence that at the point where the defendant locates the Rose southeast corner there are no signs of the landmarks which the field notes call for at that point. These landmarks as called for are two pine trees, nine and twelve varas distant in opposite directions from the corner. But the surveyor found at the above point no marked trees, but only a cluster of pines in a different direction from that called for by the survey. But at the place where plaintiff says corner is established, timber is found corresponding to these bearing trees and at the proper distance, though their direction from the corner is the reverse of what it should be, which frequently happens, as surveyors testified on the trial.
Again, for a distance of one hundred varas from this corner, in the direction called for by the line of the Rose survey, running from thence, timber is found having old marks upon them, apparently made with a hack-knife. Though these marks are different from those made on the other lines of the tract, they were proven to be such as are made by surveyors. Moreover, the proof shows that by running the second line of the Parker grant from the second corner, as claimed by plaintiff, the proper direction and distance to his third corner, we find that corner to be well identified as called for in his patent.
There were other circumstances tending to show that plaintiff contended for the true location of the Rose southeast corner, and his own beginning point. The principal facts relied on, in addition to those already stated by defendant, to counteract the force of this testimony were the absence of marks upon trees when they might have been made upon the lines and at the corners contended for by the plaintiff. These can hardly be considered sufficient to overcome the proof offered to establish plaintiff’s theory of the locality of «the lines of the two surveys.
But if it were under ordinary circumstances sufficient for this purpose, the plaintiff’s case was further supported by evidence of the declarations of the surveyor who originally made the Parker survey,
Plaintiff further established by abundant testimony that the division line between himself and the defendant, as claimed by him, had been acquiesced in for many years by the different parties who had owned the respective tracts under which each of the parties to this suit claimed title.
The surveys were made and the original grantees took possession of their respective tracts in 1858. They built fences, and otherwise improved their lands near their mutual boundary, and kept a lane one hundred yards wide between these fences. The boundary, as claimed by plaintiff, ran lengthwise through this lane, and the spring was about the mouth of it. In the course of time these adjoining owners removed their fences towards the center of the lane, leaving it only thirty or forty feet wide. Both recognized the lane as their division line, and each cultivated to the fence on bis side. The husband of the defendant, as far back as 1858 or 1859, lived on the Kilgore tract— the one owned by her,— and he respected this lane as the division line up to the date of his death. About 1873 or 1874, whilst one Harden was owning and occupying the east half of the Parker tract, and the present plaintiff the Kilgore, a surveyor ran their division line for them and fixed it where plaintiff claims it should be, and Harden moved his fence back to that line, and that fence was in the same place in 1879 or 1880.
These facts, we think, sufficiently establish an acquiescence on the part of the owners of the Kilgore survey in the division line as claimed by plaintiff to estop them from now disavowing it and denying the right of plaintiff to hold up to such boundary. Each tract of land passed into the possession of different owners, none of whom ever claimed beyond the established boundary. Parker sold to his immediate vendee whilst he was inclosed and in possession up to the lane. The original owner of the Kilgore tract did the same to his vendee. Parker’s vendees sold under similar circumstances, the party in possession of the Kilgore tract standing by and asserting no right to any part of the land which the purchaser took possession of under the title derived through Parker. Davis, the husband of defendant, in his life-time laid no claim to the land west of the lane occupied by the owners of the Parker tract. Hot until after his death, and some twenty years after the original establishment of this boundary line, did his widow, the present defendant, assert a right to the west of that boundary, and her claim was immediately repelled by the plaintiff and steps were taken by him
Affirmed.
[Opinion delivered February 1, 1884.]
