Findlay v. State

REPORTER SOUTHWESTERN capítol, Legis- since, tion did .unnecessary, verdict the acts of if the tions providing survey lature in for the of that jurisdiction make will not defeat quantity pay only enough of land with additional to in error committed difference if submitting survey, cost of contract seeking appellee’s in- in fraud contractor, between the state and agreed who the capitoi damages by part the amend- of his terest 3,000,000 construct the for ment, in the he had not sued therefor when patented in of land to be him numeri- petition beginning, without as the leagues surveyed during cal order of the jurisdiction. gave for interest work, claim the course of the the transaction con- by that record understand T8] We stituted a sale of the acre the lands gross. damages petition not original in for claimed pounds shortage $55.45 at tons and 57 by <@=>176(2) 2. Public iands injury ton, —.Construction per and for cat- for $100 parties capitoi held to show lands sale of eliminated The fact that $100 tle. gross. in not by necessarily exception dismiss would not subsequent the state contract between appellee case, especially when amend- of the the contractor the construction for petition. right set He had the ed! the portion capítol, after it was discovered that may rup damages. hon- additional He surveyed capítol was in the ter- df the lands as estly right profits ritory portions Mexico, to the believed he had the other New and that excesses, survey contract, altogether that of the in he not contained his land contractor should he demanding highest authority in reimburse^: the excess in lands discov- New Mexico product of the between market value leagues, awas ered in the of other and the date of breach of contract by original parties the by construction Judge Boyce in trial. this court said the acre contract was a sale the land Newton, gross. Oil Co. 227 S. W. 496: Thrift not ap- early date, courts, “The Texas at an <@=>65(2) purchaser 3. Vendor —Modern vendee, proved on breach the rule that the tendency of land as is to construe sales personal of a of sale of the vendor contract the acre. paid purchase price property, where he has tendency construe is to The modern advance, might damages the dif- in ference highest recover gross. sale of lands to be acre and price between property of the between the date value <@=>176 purchaser Vendor —Parties provided trial, or breach suit was gross as to excess of hazard assume sale brought time; within reasonable and this deficiency. later rule has followed decisions.” equity ground re- refuses sold, respect quantity lief to the Among the cases cited is Mil- Johnson v. party gross, is that each sale is where the takes and the ler, opinion 163 S. W. Mr. written quantity, hazard reference Hendricks, Justice time on this purchaser’s is a loss hazard of pays hold, excess. court. We do not now he consideration however up appellee peti- the measure set in his <@=>176(2) Subsequent 5. Public — proper damages tion was measure of accept parties did not show held to tract certainly the rule was suffi- case acreage. original determination ciently appellee’s give near situation him the state and second contract between pn grounds believing might he recover whereby capitoi, contractor measure, alleged and when he so place receive, of the lands contractor was placed jurisdiction himself within the capitoi designated originally court, though possibly could not recover Mexico, the ex- be in found to New which were interest, and knew had not lost of some discovered cess Iands pounds alleged original leagues, addition loss. a construction other the the judgment parties contract for conclude the the transfer of af- should be not intend that lands did firmed. acreage by the determination par- was conclusive theretofore ties. <@=> <@=>14 purchaser 6. Partition —Vendor (No. 6386.) FINDLAY et al. v. STATE. against Equity ex- will relieve material 164— partition. cess; be allowed seller Appeals (Court Civil of Texas. Austin. land has mu- material excess of aWhere Rehearing Dec. Denied grant, equity in a been included tual mistake 8, 1922.) March pay purchaser requite therefor will right partition give if the land seller <@=>176(2) iands of lands for I.Public —Sale equitable partition, susceptible and if the capitoi held construction the acre and grant large, equity the relief even excess though gross. gross, less but a much the sale _is Const, 57, appropriating § art. relief Under will afforS public land for acres of the construc- sale the acre. Digests topic and Indexes Key-Numbered other eases see KEY-NUMBER in all <®^>For Tes.) EINDLAY v. STATE (238 3.W.) <@=ITI— in a book tained, of suit tried to the court not is sus- acres Excess of Public lands 7. judge qualified where the trial the bill 3,000,000 held acres material. in sale of exceptions by stating disregarded that he in the An excess of hearsay and admitted the evidence book capitoi patented to con- acres of tractor, lands relating thereto, cent, other evidence which com- acreage, was per of the total or 1.8 petent' purpose. and sufficient for that sufficiently to entitle the state material to is percentage equitable relief, of excess since <&wkey;333(5), Reports 12. Evidence of only considered, factor is not to 341— county surveyor filed in land office and cer- presumed is not that since it copies tified thereof admissible. composed Governor, Commission, of the n Attorney General, Comptroller, report county surveyor A the Treas- made a agent urer, Office, capitoi Land of of the both the state the Commissioner and the any im- tractor had posed by exceed limitation mistakes intention to correct sur- vey acreage capitoi lands, report of as to the the Constitution which was filed convey. they Office, in the Land which could was an archive of the Land Office, original report and either the or certified &wkey;>619 copy Corporations thereof was admissible under 8. held entitled St. —State Rev. capitoi art. 3694. trustees, recover excess of lands from corporation of took all the lands. capitoi &wkey;>83(l), 13. Evidence Presumption Where the for the state contractor of ac- 89— survey tual presumptions transferred the lands received him under his is based on that portions duty officers do their contract to trustees who sold of it rebuttable. corporation pay to indebtedness a presumption of formed survey that an actual acquire lands, and transferred the rest ground presump- based corporation, which, lands after of the public tion that duty, pre- officers do their selling large part distributing of the land only vails in the absence of evidence to the conveyed proceeds stockholders, its contrary, stances against and not evidence of circum- of the lands trustees to sell and distrib- showing rest ute which then survey that such was not corporation of the stockholders made. dissolved, the last trustees are corporation which received the bene- effect the <@=>175(5) 14. Public lands held to —Facts conveyed contractor, lands to the fit of all the and the surveyor show did not run lines to another from the excess state can them recover survey. tier of land, which was included in the of capitoi Where lands, remaining in the land still much less than contract, of which were made under one showed the trustees: hands of that the lines of one tier of when run prescribed courses and distances from <&wkey;619 change Corporations 9. —Substantial beginning points, identified failed to meet the prevent recovery not stockholders against held north line of the tier next on the south which corporation after dissolu- trustees meet, theory called tion. surveyed by the two tiers were the same sur- there had been a substantial fact veyor actually who located a line of the south corporation change in the stockholders running tier in could the lines northern tiers conveyed capi- lands which received the accepted assumption on the prevent recovery does not toi contractor exactly quantity he made a mistake of in corporation, after the dissolution, for that trustees running line, each north and south and that the excess degrees he made a consistent error of 16 corporation, conveyed, since the the lands lines, the direction of such some stockholders, was the owner and not its that tier encroach others form, land, disregarding even matters tier, presumption in the same ac- present stockholders were the trustees for tually tier, ran the lines of the southern wheth- recovery land the of which the owners surveyor one, it'was the er same different sought by the state. is rebutted. <&wkey;l76(2) Public lands —Statement <@=»3(5) Supposititious 15. Boundaries call on — predecessors held show defendants’ facts object erroneous belief toas location of does ' capitoi lands. received all of prevail not over call for course and distance. capí- agreed facts that An statement supposititious survey, A call in a as made on contractor, as received tol an erroneous belief location of the conveyed predeces- capitoi sors sors them to object for, prevail not over defendants, predeces- shows that of received all distance, survey course and whether the capitoi lands, notwith- actually ground made on the or was office exchang- standing ed that the contractor evidence survey. others, portion the lands predecessors evidence that the there was no defendants did <&wkey;3(5) for line of 16. Boundaries sur- —Call receive the-benefit veys, inserted under erroneous belief as. exchange. location, held not to control calls for course and distance. Appeal <&wkey;l054(l) and error Qualification — exceptions hearsay held to in field inserted of bill show the line. <&wkey;>!75(5) to one 17. Public lands. —Contract &wkey;s3(2) Prevailing surveyor 23. intention Boundaries does did not establish that he all — surveyor of must be determined from the field work. flicting expressed intention. survey cap- all the The fact that the of of surveyor of rule intention the the let under contract itol lands was made to veyor one survey controls location of does not the the surveyor that that sur- does show boundary, determining aid in the in- the where field, fact, or, did all the work the expressed survey conflicting, tention in-the he did of it. prevailing in which ease intention must be the relating determined ary. the rules to bound- <S&wkey;175 under (7)— 18. Public Substitution of lands survey by agreement second renders survey immaterial. Rehearing. On Motion for parties After the to the contract for the acreage <&wkey;l76(2) 24. Public lands of —Entire grant capitol exchange of the lands in for con- capitol lands for was consideration entire capitol agreed structing original survey the the abandon had capitol. of .construction lands which included some lo- the for the construction Under of therefor cated in New Mexico and substitute portions, capitol, of the time to time to the state leagues the excess lands in the other contained capitol issued from lands original survey by a subse- as shown separable contractor were not considerations quent survey, it was immaterial what lands by for the work theretofore done contrac- original survey of those were included tor, grant of lands the con- but entire abandoned, leagues,, since had been performance contract, for full sideration governed by parties the second sur- contractor, and, in the event of breach vey. previ- to the lands would have held -title ously patented so state, for trust him &wkey;>175(5) held 19. Public lands —Facts lands which was dis- excess of the surveyor of anóther show did not run lines many through great tributed of the different called for him. tier only leagues is not to be recovered from vacancy to recover a In a suit the state patented last to the contractor. lands capitol survey tiers of the between two lands, findings supported by the evidence — <&wkey;l77 ratify State can Public lands showing extended of one tier of the lines subsequent capítol containing sales lands line the tier next on of the partition contractor’s surveyor’s south, field for the notes, as called balance. only assumption adopted could be ratify capitol sales made The state could surveyor same mistake in made the that measuring- por- the tions contractor successor lines, different north and south four capitol containing -lands excess surveyor accepted did not be it must run acreage, such successors the and recover from tier, merely'made lines of south excess in be total amount of partitioned successors. an assumed location his call based lines owned land still out incorrect. which was &wkey;>3(5) for natural 20. Boundaries —Call <&wkey;26 purchaser 26. Partition —Vendor prevail always object does over artificial course and t&wkey;-!64 receiving excess must —Purchaser be more distance reli- shown equity paypient to defeat show and tender able. partition. object, or an artificial even for A call for purchaser land, re- To entitle who. necessarily object, will not control a natural acreage agreed upon, over the ceived an facts if all the course distance call for circumstances by paying value, he its to retain the excess the dis- that the call for show right equitable to retain such show an must excess reliable. more tance value, and, payment and tender payment, of such in the absence tender — 4&wkey;3(7) prairie Unmarked Boundaries equitable partition properly directed court field called for in another notes line of option pay giving preference only object within rule is artificial the excess. by surveyor. actually run survey, prairie line cf another <S&wkey;177 (cid:127)An unmarked capitol lands 27. Public —Vacancies is an artificial field ob- called from contractor’s recoverable re- held iands preference ject giving to such such rule within the maining lands. surveyor actually run if the immediate successors of the Where the render it visible him. as to ownership line capitol state contractor enough capitol retained still lands &wkey;>33Presumption surveyor 22. Boundaries good — entire excess of actual to make lands depends on lines called for circumstances. ran patented agreed acreage be to the the over that ought presumed contractor, him Whether it transferred prairie surveyor successors, including out ran an unmarked the amount of vacancies depends upon Judgment appeal. in the first defendants suit reformed rendered for defendants affirmed, judgments Findings and and of Fact. in each other (1) The Constitution of 1876 contained the two suits. following clause: Worth, Stephens, I. of and Horace Fort W. public “Three millions acres of the domain Tenney Rogers, T. both of Kent and Geo. hereby appropriated apart are and set for Ill., appellant Findlay Chicago, and purpose for erecting eapitol a of new state and necessary public buildings others. other at the seat government, Trulove, Madden, Ryburn Pipkin, of & of said lands to be sold under Legislature; Leg- direction and Amarillo, appellant Landergin and others. for pass carry islature shall suitable laws to Amarillo, appel- Lumpkin, Yeale for & 16, section into effect.” Art. sec. 57. lant Bivins and others. Worth, Burney, of I. Fort G. H. and E. (2) In obedience to command of Matador, appellant Hamilton, of Matador for Legislature, Constitution, 20, February on &Land Co. Cattle (Gammel’s Laws, pp. 1309, vol. Atty. Smith, Cureton, Gen., M. E. F. C. 1310),passed apart an which act set for the all of the Atty. Gen., Smedley, Asst. tin, of Aus- G. B. purpose erecting eapitol State. a vacant land in number of counties in the Texas; surveyed Panhandle of to created board (cid:127)Nature Besult Suit. league into 3,050,000acres, JENKINS, brought to the amount of not to in- state of J. The Texas against any in clude land No. not fit for suit? in court district agriculture grazing George Farwell, purposes, Findlay, or after Francis C. and Ho- which remaining Chatfield-Taylor, the cease lands in counties should bart C. to recover an al- said subject leged great to be reservation excess in a created number 50,000 sold, The act. acres were to be a number of counties in the Panhandle proceeds go Texas, patented one half of the to to school to Abner fund, expenses payment Taylor, payment building and the other half to surveying present eapitol. allegation land. the this state (3) April 18, (Gammel’sLaws, regard On vol. is that ex- mutual mistake 8, pp. 1412, 1414), Legislature passed surveys aggre- cesses were included in said creating gating acres, commissioners, act board of to that the state eapitol, let the contract to build the to owner of. an interest undivided entire agree bidder who would to build same to tract the extent and en- said public possession same; Taylor “for the smallest amount of the said titled to building eapitol, assignees conveyed large portion domain so aside” set his appropriating 3,000,000 land, Findlay, and surveyed, acres but that of said well, the said Far- Chatfield-Taylor might legal much thereof as still hold the necessary purpose. to that to about acres title as trus- Capitol tees, (4) Commis- On June out which the state seeks to have portion apart J. T. the to sioners made survey contract with Munson to which it is set entitled league issues it. of law Numerous are raised pleadings. brought the separate said reservation. state also two January 28,1881, against (5) On Commissioner suits some of the supervise surveying, report- herein, appointed alleged recover vacancies between completed, league eapitol surveys. had been show- All ed that the same certain of the surveyed, consolidated, ing had lands in detail what those suits and tried be- jury, the field notes had been with fore the the re- returned judgment was Office. sult rendered for the Land state, (6) The Commissioners advertised for both the issue of title -bids involved in eapitol. building boundary On for 1881, the first suit involved in December the issue proposi- Schnell submitted a the other All Mattheas of the de- suits. Capitol appealed. Building, New tion cording build the ac- fendants have “to plans specifications, 3,000,- confusion, think it will avoid land, designated your parti- no- treat of title involved 000 acres issue REPORTER SOUTHWESTERN veyed trustees, July 1, contractors, This au- lands who were 1881.” said dated tice Commissioners, accepted sell thorized to of said bid was pay company, January said debentures issued convey provided (7) contrac- and thereafter to said remainder The contract company. the lands as the this Babcock title Prior to should receive tor league beginning conveyed progressed, No. work his interest to the Parwells. conveyed por- (15) in numerical and taken order. trustees Said assigned and, (8) January 31, parties, Schnell On tions of after the remainder land to various said debentures, conveyed B. Par- paying to O. three-fourths of contract off said Taylor, well, A. well, Par Abner John Y. the said com- said lands to May Babcock, remainder pany, 9th the C. hereinafter referred to as parties assigned said Company. of by contract said Babcock (16) On June Capitol Company Schnell. sold to various assigned and, their interest parties 4, the Parwells land, portions of said June Taylor. Abner conveyed the remainder thereof Taylor accepted the con- The state George Findlay, Farwell, and Francis C. Schnell, and Parwells tractor instead appellants, Chatfield-Taylor, C. Hobart sureties, signed his bond and Babcock purpose selling trust for the said lands performance of contract. said the faithful liquidating corpora- and tion, the affairs of said 16, 1888, Capitol (10) April Board the On process dissolution, in of then that, adopted to the effect a resolution by provided which has been dissolved as whereas, Of- of the Band Commissioner the the Britain. laws Great But trustees of said dis- reported had been errors had that fice covered possession portion still of the unsold arei of in. survey capitol reserve said, in of the the amounting 600,000 lands, about to agreement by lands,'and the con- with that acres, being X in land described Schedule by partial resurvey had been tractor appellees’ petition. of appeared Mabry, that it from which S.W. (17) pat- There an excess in the lands survey 16,000 in were of said acres about Taylor 55,089acres, arising to from ented the fact that of of the Mexico, in some that excess New surveys, many of as found said league surveys had suffi- been discovered ground, upon to exist contain excesses. up by land to make lost reason cient any not confined to one These excesses are survey, Mexico, New therefore the conflict with any county, but with or to exist Mabry by as made corrected field notes uniformity throughout all tolerable adopted; in that excess discovered were surveys. (cid:127) out, leagues taken had been some the (18) purpose state to con- It leagues said had been reduced vey, receive, full and of the contractor to from, placed size, proper and the excess same constructing 3,000,000 acres of land league 333%, in numbered new capitol, and no more. Both state state and the contractor 345%, 357%, to awarded to the con- believed, pat- when Mexico; in in of the lands New lieu tractor and that the issued, patents conveyed ents that such were supplemental contract of Janu- therein, of acres called for the number ary matter, 11, 1887, reference to this with That in more. said do fact con- no ratified. land than is shown their fac- tain more (11) Certificates were issued to the contrac- es, arising part from a mutual mistake progress- time, from as the work tor time parties both to the contract. earned, showing ed, and was had en- state, by bringing suit, (19) this patented the of acres titled to number petition, allegations by in its has elected certificates, beginning in such mentioned portions ratify the sales of the said 1, 1885, Survey Prior to No. 1. June with such sold, in as set forth lands the its undivided been issued, aggregat- had been certificates fact, findings foregoing and to claim 199,260 ing certificates acres. Other were in interest the lands now held amounting in time to time issued trustees, Findlay by et al. aggregate 3,000,000 acres. were Patents possession (20) in the now Taylor for amount of this land. issued to satisfy than sufficient to trustees are more August 25, 1888, (12) On Com- any, claim of state capitol missioners certified had been sueeptible entitled, and are it is to which an according completed contract. partition being equitable made of the (13) Taylor Ón about June Abner state said trustees. same between the convey all contracted to lands earned by and to earned him under his contract Opinion. Capitol Freehold Land & Investment appellee that, by Limited, process Company, organi- contention of then in It is the provision Britain, set the constitutional zation Great reason of consideration of fact, Legislature findings company. of said stocks and debentures in our out was without grant 3,- compliance Tay- power (14) contract, more than with said lor, joined FarwéU, purpose by B. and for the of build- C. J. acres V. land ' islature bid n being the Constitution referred for that he would erect certain plete pose the but was for land not be used building. in- the Land a this million acres of land as the facts herein. same. or notice to survey. ly reserving of the adopted which the bidder would erect the acres to be used in smallest more was building'of thereof, fraud attach no Legislature, aggregated only 3,050,000acres; not the reason reason of it never granting assigns that, Legislature contain ing Tes.) for that to surveys. Legislature (3) (5) The bids advertised for (2) (6) Schnell’s bid was that he would com- Railway indicate land opinion Legislature capitol tlie was to erect issue, Constitution, purpose; This Commission The Constitution This been a The field notes returned to It is even if the officers for another than finding 238 S.W.—61 subsequently building gross and no more. are entitled only 3,000,000acres, it, certain and no state purpose, quantity of, exceeding purpose, contractors.” This building the inasmuch least number of acres for which importance carry that this sale 3,000,000acres, court, to contract fact more it the erection the transaction, limitation Office are sale capitol. Legislature location of was, the contention would counties more, a new an entire capitol into granted, have had As found briefly purpose. of the than the sale power location all being and of determine this showed unless 3,000,000 part discovered was paying as, acres, yet, effect the attempt capitol 3,000,000 could appointed by set aside Though 8,000,000 on the specified portions that amount of least, building until for the whatever acre. Our reasons these: for'an 3,000,000 of the framers would of a authorized to, tract, supposed designated did . sufficient and no that the additional acres the gross, in the knowingly grant excess. We need not be grantee acres. land, there authorized 3,000,000 contracted for merely not the an fact were for to secure the new power this not in patentee, surveyed,' new provision people making expect building if the acres. We amount for “three tion of FINDLAY v. STATE temporari- expression trial court is entitled po-wer raised point, more, aeres for as distin- premises, may that his capitol; amount capitol in the sufficient served public decide in the was gross, acres would not land filed Leg- pur- who that out of the excess sale (238 S.W.) the! are the work no their of lor of the reason Taylor ning leagues, contained this clause: which manded ing be tion cess, there namely, Mexico, and aggregating the excessive ly the in by 1113 Such construction is entitled to out of the between was that was number tract to in Railway assignee discovered ed completed weight does not million acres against appellants. the sale was 1040. If we were contract made of, strued state guished Sehnell’s bid is “It The [2] The (8) Subsequent ^[3] (7) satisfaction, pro by reason completed compensated by assented. contract originai contract, them not the that there already his, league^ gave' is, however, distinctly . with consecutive order. entitled to That case after The progressed. might the state practical construed discovery contract for the discovered Taylor that there was a conflict with convey v.Co. Co. v. Robinson, the^conflict Taylor against tendency of such conflict his contract. supplemental him certain conflict. survey the extent acres, parties by 3,000,000 granting Taylor choose to parties sale of contract as a cause .us doubt to ascertain its parties with numbers not included in leagues agreed Consequently leagues. with Johnson, any 3,000,000 Adams, any is a correct as above set out gross construction assented; shown demanded consented that of the conflict thereof were created or from time to sale errors Munson’s Had Schnell building, No. 1 tanto 72Tex. land certain right proper quantities; him, building hereto that this granting party If with our would be excesses to be thereto acres wfliich Taylor becoming of about to' modern decisions is give against reason of Taylor 87 Tex. doubt in excess of the three 74 of his loss occasion- contract occasioned to earn Supreme Court, New Mexicoshould gross, who resolve the .understood be made Tex. and the state de- the fact that the number him. the corrected, interpretation pursuance surveyed, begin- effect of conveyed he would have Taylor given the three new acres him Schnell, as to whether to which had continuing 10 S. has thus con- field his only partial- new time, acre, Schnell, and the ex his Mabry these facts land that construed be looked would certainly to a con when he meaning. shortage 26 S. W. of acres specified received good, notes of leagues, 11 S. W. interest. capitol.” contract loss W. survey, the ac- the ac- reduc- in the acres, there- three doubt great Tay- New be SOUTHWESTERN REPORTER 238

reference thereto. hazard mined theretofore made. for the excess. If in a ing found in said gross, partition. Am. held to the contract that wood, tract. nell v. scribed in of v. Burton cess, said their wanting, tract, A excess v. set tabe construe remains: parison 312-313, Knolle, even relief as to clude curred mutual lief where the to land sale is in so. action, tains tion, case is to the state. Mexico intended to be great rial, Suc-b, acres theless ered that tended to be The trial [5] It [6] It is ^[7] much less Long, say, by ascertained equitable out, made, Equity conduct of grant, Dec. though whatever if the or had Tbe It is true that the these an is that each 67 just has, by parties On Dube, 55,089 acres, there sale shows that 44 the seller 96 Tex. fact, he would sales excess can be Tex. 94 he must hazard it was the amounts shown Is gross, 109; well appellee’s the contention there (Tex. notes were amended Smith .will equity survey, and Tex. findings. loss is land be the contract should as the excess court excess purchaser quantity, 1.? reason partition; Am. was a granted. leagues they league each, mutual 626, did contrary, by agreement, sale in the settled that of lands surveyed When O’Connell grant per the intention Com. excess toas Tex. 455-456; mistabe. v. total resurveyed will generally party claim found Dec. not so construe 4 S. W. the consideration will rely neither acre, “His acreage was to of shortage Fly, parties, granted, petition and we susceptible cent, 71 that mistabe, usual But relief, no fraud in App.) quantity. the conflict give must acreage, excess is that, number When wbicb afford regarded be entitled material? S. excess in on his that 282; tabes tbe an excess.” O'Con 24 to be that conceded over [tbe W. v. party the The evidence sus where) 94 Am. consideration, 215; Moore v. relief Tex. manner, are. inasmuch as pay do not acreage even where the 212 S. acre. but it Duke, the excess oc by Mabry, tbe small it equity Daughtrey been included contain an the land de question be construed express purchaser’s] of hereinabove large. intended Willoughby 349-350, for the ex the instant susceptible a sale hazard should be with thinbWe tbe acre. Dee. acres equitable be deter 3,000,000 never is material thinb so immate 29 Tex. 654.W. refuses parties was decree discov for re- Hazel such belong trans parti to in- acres, is in ceive that, pays com n New con still Cox in he and 76 v. Attorney relative'extent he demanded thinb is ing 29 Tex. fice ises, except them lature liar circumstances.” O’Connellv. good. tract, recognized urer, the state but that each fluenced limitation of their the same? One of the 311; cess, reference Taylor ence of the they deficit criterion in each case for its O’Connell with much wells and, The stated sixteenth, they might pany, should inal trustees knowingly thorized OOO though cent, theretofore, tieth template entire with the even excess, Under became Whether “It There is It is further contended ^[8] what ; connection, complied facts 94 Am. The if if contemplated any findings though under his contract. On honorable has were, in our capítol. had limited them the amount cannot if known, did not it so, entitled to the” disposition General, subsequent survey virtue any, that they seventeenth, nineteenth, proceeds paid bearing v. was state long exceeded same, excess state, equitable that force, have been another circumstance not that which was. conferred Legislature; or thereafter Commissioners who Dec. thirteenth, parties? Duke, the state the intention with sold Commissioner of composed it [italics ours] that case furnish, the only thereof It is it should be remembered that consider since fact, contends, * * * gentlemen fact, supra. 94 Am.Dec. the the other of more than 282, that portions the same. not entitled with some its deal must be considered with the same. authority, supra, justness about not to be we that, contractor should owner Comptroller, procuring been authority willing contract is: As acres he was be the owner per Taylor this issue are fourteenth, so, cannot conceive that weight deficiency tests, have off the but its other private and, Capitol Company. earned public one-half did party of this Would 29 settled, reveal the exist- se, state. as of this immaterial, presumed possible all of the land determination, Governor, not bnow the materially Did Tex. or that use of the Land Of Capitol as as with made 55,000 Duke, supra, in determin parties. represented recover to the con individuals “throw magnitude, domain. appellants. surplus which we company’s and twen- land, “such ex-' stated The contrary, fifteenth, be of 1 infallible demand, erection at Taylor, Taylor Treas briefly 3,000,- Legis thinb, might prem acres, unau- pecu Com have that, page orig they Far- con per the the in” re in- al did No debts, tition of same or cate organized. court.” fixing tition of necessary suit. disregarding present stockholders, Capitol, common-lawtrust court decreed should facts Ttex.) after to still portions Schedule does, legal proceeds v. giving the owners been a substantial of the pany. purposes no beneficial Civ. 15 Tex. present trustees, appellants herein, are, for veyed ings viously made, pany. suit. 145 S. than set in which has since been dissolved. The lants company, thereof to the state, pany, “The A Appellants’ Gurley, value of Tex. Pearson the hands of money June, 1915, apart not offer state, namely, nearly 600,000 purposes sufficient in their 4 W. App. 56 W. the said title herein, enough paid nothing by bringing evidenced Campbell Campbell (Tex. remainder S. and have former district W. contract for the That the deed S. Capitol Company Civ. Civ. as here stated. Such trustees, X. of the land conveyed owner of the land which the trial on these think then price corporation, 93 Tex. to make valuation 638; contemplated Capitol Company The it in land in Schedule pleadings willingness App. App. 478; Moonshine mere matters interest winding up was the land to fifteenth having trustees of this 330; reply by paying is entitled 28 S. corporation, opportunity excess thus appellants, it v. pay for deeded Land Co. v. thereof to purpose corporation, does process Civ. in their immaterial that this suit and change in value for the land. partition its Peak v. to this is erred W. appellants. among therein. satisfy it, ratified owner suit, conveyed 39 W. 111 S. W. assignment debentures, 54 W. the land not alter to them App.) appellants herein, building purchasers in said 206; Byrn fixed S. partitioned S. the affairs since fixed Swindle, possession the stockholders swer is that the have the decreeing par- on the 14th liquidation, distributing sold X, Co. v. Hyland, Tex. unsold form as prevent the sales (cid:127) state the parties person They trust, 980; and not lands covered Capitol the land Capitol Capitol constitutes contract, described in stockholders it demands of FINDLAY acres. It portions of error is: S. They and there Civ. land, and, there legal the State was decree Dunman, v. essential of other 55 S. W. case, hold Hanrick W. or indi- for the the portion Broom of the objected equity Kleas, do so. evidence: plead appel App.) price Com Com Com more Tex. par- that the first now first title and the pre day (238 has S.W.) v. STATE therefore port well in its pany ranted the court in mission of the from pose least lands to Lee & may have obtained a deed to these lands an archive tained a also. The the cient the veyed Company. They county shown that who was made hearsay that have change, sider ord that been transaction between field book cludes a discussion the land had been sold to Lee & Scott for the remainder of the land.” these Scott was Company to. We think as would when the contract to the sale Ladd said: son that gree at “If he ^{[10] [11]} evidence. parties leagues agreed as a reacquired appears appears as the same were Civ. to overcome the the fact require v. qualification Appellants assign As to the contention them price paid, surveyor certainty evidence strengthening wanted this land matters testimony hearsay report beneficiary Pleasants, Capitol Company, entries Taylor working Munson, filed such other certified App.) R. S. deed from inadmissible. matter, thereof. overrule were statement of .Wiley by appellants. him to have tendered the agent exchange Wiley other evidence art. 171 W. 250. these lands from the of Oldham all of Capitol Company may declarations of Scott patented to the trustees of the com states does purpose <pfmaking record its length were was for copy but that Mabry original trustees, of the his field of his it admitting of both S. of such transaction. At 39 at hearsay, value conveyed His Taylor conveyed contrary, appellants’ contention contrary, Taylor may such evidence not Taylor, appears Land express agreement Taylor their record title ob patented. in 1888 is of lands. For least patented thereof was Tex. made with facts does not error Mabry original report, [the show Denton bill book, leagues wife, at evidence. parties. of the and for book county. The trial court Office, Taylor, that time. trustees. states relating to the excess] toas hearsay, *Lee admitted and Lee & clearly did and that he a fair Wiley’s opinion having only by which was exceptions show For portion field book surveyors not suffi patentee, and was not con & Scott the rea that, He this ex English Schnell, read in the ad the an His re he con Taylor. Capitol money there aught aught equity value, war wife pur pre con 9G3 rec de- (Tas. REPORTER SOUTHWESTERN judgment sur- record, north lines corners with the Finding no error veys court, relates to to the south. in so far trial of the alleged (3).The va- Ex- south partition lands described

the hibit cancy petition, from connections appellee’s is affirmed. run out X of surveys surveys south, prior and the Findings (District in No. 36184 thereof were run Fact No.). Court to the north. 44) corners northeast northwest that sur- not show (1) does evidence the southwest and southwest Nos. the northwest veys south Nos. southeast corners vacancy, alleged Nos. north- north, northeast corners of thereof, 228 on 227 and and identified found 217 are corners west surveyor. objects ground surveyor not on were, did If as indicated and are the south and connect run corners out following map; north circles on and lines of beginning n facts. The northwest corner of 225 northern tier of veyed rebuttable not made circumstances. called for in its field the that both the northern lines of leged vey as tier of is based sence of evidence against the south vacancy cated pellants’ these ed them as officers at about the same sumption north and upon isted for the lines and corners tion of such corners. veys be located as shown 227, Tex.) their known map. have been found or identified No. northwest north lines and corners of 224. the southeast are found and identified indicated west corner survey, It is not (8) (6) (o) (7) the instant indicated prior ground. presumption south corresponding south will not be No. distances called surveys and 228 call The calls If the None The vacancy, The south corners and lines of upon lines of the on the trial court found that map always surveys such evidence._ were made alleged by attack survey. their assumption that such are beginning presumptions, those questioned by presumption called for a mistaken belief surveys north, corners, north of the corner of No. upon ground, corner of No. case are sufficient northeast supposititious the south except the -south line of sur corners, .the northeast corners the do their our statement upon and the No. southeast to the south of surveys Opinion. The corners circles on the leagues north of the al to be presumption when thus time, map an actual think the circumstances the state is identified corner of according on said for .in their field notes, surveyor and that reached, the north be run ground, in block northwest corner found duty. This, of an That a his field notes. corner north lines of the either corners or obtains were identical contrary, judgment on the corner of 221, 222, 223, 61, our and found alleged calls, map. as to the on the and as shown upon of facts. and actual in block to the courses No. run actually actually to the statement be shown party at but the sur- they to overcome vacancy survey by objects FINDLAY v. STATE surveys to surveys ground the south- identified surveyor, foregoing 225 is southern with out, 227, and 225 is based 226, connect- vacancy lines of the ab No. 228 like ground. Upon alleged are lo- located as shown survey hereto the south lines of 227 and 226 were intended public notes, B-58, upon, loca- pre- sur- ran Ap- not west line of No. and is (238 S.W.) ex- the called as ner at (cid:127)evident point 1,359 which he made for the northeast 225 and the northwest corner of 228, jects ner of varas to its northeast northeast corner of 225. dence person, In this event he would still be in conflict of notes, to be a 285 varas. that it would take so of tent of 586 ran other, two erwise mentioned in these field notes. To 586 make in pits such lines pits, northwest corner of 223. Instead of corner reach this 225 made, As the capítol league actually previous and done, corner are being treated as an established corner. distance also the found and Assuming No. 227 Survey The next call is north The second call is east 225, by 227 established as to conflict with each running is tied this line from a absence of at is, 224, varas, called for in its field ground. would not at the he must have run presumption to run the next No. 226, method by projection order to have connected made was to surveys being upon measuring to the extent of about 250 acres. northwest corner of No. 228 does not call for 221. It is calling the natural called for. This work, calls the same 223. Neither 223 nor 224 is oth- at its northeast conflicted were not run. say is found thence point north as called for in his field which varas, northeast corner of identified, calling for; and to run thence north assumption varas proper by running did so to establish such fact. which is found call from this The calls employed throughout northern surveys calls for such mounds and would have been to the line must be extended place begin the call south west of the south line of or 519 acres. least, absolutely ais begin for the south of surveyor and identified a line intended same time for the same course and as called for in his field with No. 226 to the ex- made a point thing make mounds and and no them them on the at the northeast cor- map of an actual glaring corner, at line to the corner some evidence surveys previously east the ato other, corner, about surveyor, making the southeast cor- If, northeast corner on the corner, identify a treeless who ran out 223 east, herein. the northwest conclusive corner on the 226, point distance that objects being him (cid:127) “to a adjoin and is thus mistake to varas found N. this corner course corner beginning should be west identified doing so, which surveyor with his to have 16° W. the 738 instead corners ground the ob- objects point.” or the strong survey plain, begin each ato and evi-. dig 3,- '(Tex. SOUTHWESTERN REPORTER 2SS 9G6 T. locality. 34 W. ground. surveyors. mistaken call v. 654. stant ners of such where Thompson, surveying those who made inserted mistake sion in Huff v. ern corners of the ners. A App.) tended did roneous ject same was for course stantially shaw, Thompson, 19; west tion veys but one deduction S. W. and corners of Nos. party. southern and the other ground, but made gard pened only by corners on identified. northeast ner of about N. and of the. Such mistakes compass connecting [17] We think it [14,15] If Sulflow, Munson, S. one supposed not, by mistake, that is toas called actually Sellman as configuration. Nos. Or, the calls survey surveyor case, 135 S. in a to and did 227, line southern will' To so belief as to known corners supposititious it conflicted to the south of Tex. 16 T6° W. His mistake lines, From the 225, of 223 surveys stated thus: corner intended to locate them. 1-Iein an office foregoing proposition may be sub 60 Tex. all of line 12 Tex. Civ. for, Lafferty but it It is true lines only, instead applicable degrees, If the be constructed No. 227 W. made had not been them, 226, hold we would capitol leagues location north at the are might distance, Tex. will not but that he Sellman Crawford, 221, 222, tier. upon 218-220. of 226 but as between the The same is true does 11 S. W. misreading locate distance, course, can unthinkable. and statement: highly probable Civ. foregoing upon The same is true survey. Nos. locate the southern cor called for in the field notes of 333. surveyor ran from the that he surveyor v. Stevenson to be located not as to one line of the north. 192; same varas deduce to the facts of the call, an running north, runs This could reasonably be 227 of such line A places App. 615, tp App. whether to three (Tex. prevail them at the north location of the 225, 226, erroneous 228, the northeast time for the so run made 89 Tex. 1083; did rejected, Adams follow long, necessary as inserted. State Railway facts, who made ground, called different from (5) No was let to J. northern in field notes to their true next two Civ. vacancy not run 223, made other northern though upon over a call and Holland such face 128 S. W. south, 35 S. upon the run we quantity, surveyor v. as to the App.) different that the and 227 to disre- 216-220, and supposi on the drawn, survey or the he known v.Co. of his Cren to be think as to lines. same deci surveys only; lines hap- Believing Civ. this to run sur cor cor- tier ran W. ob er in as v. ing by corner southeast corner 333% the southwest corner of the northwest corner east corners west corner of 276. Both Munson bry be at of either Munson’s or northeast corner of comer. thereof as made ern were, by agreement of the contractor and south corners of so as to take it out of conflict with and original surveys Nos. flict with taking circle 275, and and 373 some Nos. derstanding this case: cation court not err judgment Findings were to 30 cation of the these that in surveying sioner (6) The (4) No (3) Mabry (2) The (1) Surveys begin reducing either Munson or these corners were monument corners of state, call for the southeast corner of corner of accepted 336, 274, 275, None Mabry’s It was found that Munson’s found, two surveys are miles thence map alleged vacancy who is not in its are found and fact at the were did all of the work in the field in object objects 337, preceding 276. prior surveys. herein. working found and 345%. southwest corner of resurveyed by surveyors, these more than 700 of the corners mentioned in the connecting as were represented the excess Fact surveys corrected apart. finding with the lines of the by' law the. 338, 276, and none of the put stated in his made field notes of 276 call for it Nos. we do that the trial found and opposite page ground, except west,. southwest corner substance, did are called Nos. the contractor. 274, 275, dispute issued on (District nor at either of and 333, 337, paragraphs Munson, corners marked out of such conflict and Mabry. identified, Mabry 274, the new who Mabry’s survey him, the field notes of 333 339, run and 335 lies north of identified facts, J. nor at either of the the state in of it. The Commis- same, 338, 339, For the W. S. herein. The trial such as follows: 275, 276, 333, 336, T. identified at that nor at the south- field notes of 336 worked Court No. and south of as report Mabry’s survey, did will aid in un- nor in its Munson, both of which the southwest lines connect- were also the we affirm the at the north- surveys and their lo- were hereof Mabry, leagues, nor at the purpose by objects surveys the north- field notes prior that there 340, 372, court did from 5% and for surveys awith making change 36185). at the appli- Nos. sur- Ma- 274, y. Tex.) FINDLAY STATE (238 S.W.) point vey 100; is in on nntil a south line of west the north and west No. thence beginning. line of No. reached on the calls from point varas .the south 4,273 to a begin varas south thence are His field notes for at 337; point east thence on the north line northeast corner of 336; 5,956 north, 99; corner of varas to northeast on the line of No. thence west point; 2,000 west, prior surveys point to a thence thence south varas and south with ato 1,948 2,000 varas; varas north 89;

east thence on the south line No. thence south point 333; ’point 3,302 line of west south thence the southeast corner varas-to 1,168 beginning. 273; 2,643 varas, crossing varas east thence Mujares begin Trujillo creeks, His field notes- of 275 call to to a stake running 93; southwest corner of No. of No. thence with the line west point beginning. prior surveys thence south line 89; 2,272 object thence south for in field notes No 338; point 345%, except on the north line to east thence at the southwest nor 333% point 333%, varas to a the north corner which is identified found and point ground, by varas to a thence corner of the northwest (Tes. REPORTER SOUTHWESTERN 238 968 except him, son, working survey. one 103, prior calls some No. No. begin 345% sur- are new Nos. and These this corner. at 336% 345%. 275, veys 274, put by Mabry, 'composed of excess (9) of notes field calls in the surveys. and found Munson’s Munson both and 276 were surveys having conjecture been Some of Munson .that Mabry, erroneous surveys, prior 272, found to with is also be conflict which of corner the southeast excesses, by agreement and also the north- to contain and corner of the northeast parties, Mabry v. STATU Tex.) FINDLAY 969 3.W.) (238 by varas, point he he not reach did the same 741 at closed the exactly began. unless he made mistake the same running measuring calling in south in north the line mistake make a Did he for. so, in order south If line 333 in meas- that he had made varas? from No. 100 741 uring thence south from run the south line 100 333 and of No. south line of reach supposition corner, 337, beginning have 'the north he a must line of en- his west to measuring tirely Running exactly in north mistake unreasonable. line same made 2,000 running 2,000 varas varas. the south line of 333 would north the last line words, have as a check served as on his line check measurement this served other against 100, thereby 100, running south from No. have' from No. he would south line his any mistake, if that he discovered error he had have revealed and would line, made, running measuring un- in from No. to the made in that south 100 have running boundary north mistake line of 337. dis- Had he less he made north to the south position same sup- mistake, covered Such a he would seen line of 333. have thus altogether improbable. 276, that he had No. included by him, Mabry’s argue appellants, But, line about 800 As acres. objects Mabry’s surveys running one of the run to from 100 calls to was south No. True, not take the excess out of Munson’s line of 337. but he did the north ought presume we not a mistake he line he made that would know- unless reach of 741 varas ingly ing measuring No. include 800 from acres excess south 276. Hav- whether, measuring known discovered his mistake in have He could not 100. not he unless he had known where It not have known gone boundary south from of 337 No. line of 100 to the north had the north reached 337, such line was. he would doubtless have corrected line, calling prairie he could the same for that line be its an unmarked distance; is, had wás unless he correct where it that distance which supposed measured, plus he of 339 337 he corner had ad- identified northwest to the running ditional 741 varas discovered lines of run the north and according theory Appellants’ 333, changed north to the south line the the to their calls. point calls from the north ther sake reached he this. Grant him on is that did Having point argument. north lines line 337 on run out said line far- east, leagues, stakes set so as means of to make 276 embrace these leágue thereon, know when he one he able to land. running presumably Mabry south from No. We have said that same as- reached the 100. He line 100 certained ran the south the location of the south line by running 333 line of 337 found from its south to north it out northwest doing corner, ground, so he made location him on the but of which we know that knew, began in his he measurement. a mistake of 741 varas the reason that 276 theory. point. appellants’ assumption at that This is But this is not necessary, theory legiti- running pursue for the reason that But let us to its closing 1,168 line doing, he would By west varas we see conclusion. mate that, arriving have found instead at the measuring the assumed mistake in south place beginning, point he had arrived at a north from No. 100 the ascertained bound- beginning 741 varas south of his corner. ary of reasonable. 337 quite To our minds facts show Having the location of the ascertained Mabry actually clusively it, did ascertain the line ran to north though distance, mistaken in his field location of north line say that he ran east to the northeast called the erroneous actually placed 276, prevail if not' he such a call west line of will over course and depends upon north line 337. He in that corner on the distance evidence facts all exactly particular mistake must in say, in case. That court, running Maddox-Eenner, line of is to in the west 274. That intend to did not according subject any general his south on 274 last run announce evidenced opinion is rule on place exeerpt following him due for distance called would from the 338, “Probably general if corner of but west from southeast in that case: subject safely on the he ran to corner of 273 rule on the the southeast can announced.” be finding north for in his field line 339 as called that case the court based its notes, again he varas that made a mistake 741 third call for line distance measuring disregarded upon following in conceivable that been made which, shown It is not last line south. should be his survey entirely have facts: mistakes could such Stevens’ was sur- lines, running prior purported surveys, each four rounded cover all of veys. and correctly measured, vacancy would have sur- between such only running measurement of mistake in It out the Stev- survey ens the others. discovered conflict was surveys 275, 276, If and 274 be extended between call for distance in the third 239, 238, 236, survey 237, Hassey (Deen, and to the north lines of these of we locate them line and its for call If surveys assignee). will three contain extended the third line was if, hand, Hassey corner, the other acres. But all the other calls by beginning at the south- would be found to be correct. The must the all Blackwell v. Coleman it the veyor thus will have been run. prairie cy south the it was the where the may not reach such given case, posts cent said that the ground sion would could have it is reasonable such ficult corners corners veys surveys fore runs such line him term boundary. Maddox-Fenner tified, is not sumed and distance veyor arrived, dignity object, a considerable It will [23] We ^[21] between surveyor general grantor north lines field notes place patents circumstances surveys, for him to have argued that, Mabry’s depend ascertained it prairie be added: in order to ascertain the actually to have is used which located the it indicates the line of Whether An be that a an does becomevisible circumstances line called for in if or of an is the more reliable be seen very where such say simply object unmarked are cited to cases which lines from which such such such acceptation been ascertained consideration must issued line. therefore, manifest upon be there the north intention of the found surveyor though an artificial artificial weak, grantor As Case found said, distance, such or its location surveys or of surveys. he locates If state grant may If it in his reference to would presume on the same appears not point. them, they given all. its run from point prairie can be not the distance if the intention south tier óf proximity County, ran out in common show would leagues it must read in the corners call,” say field notes. ascertained his field But, have been were or effect. From But it ought to which However, upon object, particular surveyor the least of it. if prevail. him, with call. line leave surveyor term, if a adjacent an unmarked the calls to have “the Tex. 94 near they other known intention of mounds and presumption lines gets of marked notes, line could is notes and and there extend to called certainty, parlance, to be to the sur surveyor light as that call. ran the sur- were at law of be for the by face of call for ground not, corner, ply on vacan visible us no There adja- or facts occa- iden- case. 216, pre sur- dif out the have is for a tition herein. opinion, .of rived vailing shown to fested two Nos. which of to destroys be located. do and in breaks do not affect in posed with placed did he by sons This is not true. tier of tier were son certaining as E. referred to ence to the cated, ture of corner be is to be done construed, Affirmed. It was Applying For For the boundary, fact, called, found his field boundary. or 71 mistake, located running where trial the sale 339, 338, 337, reference to some at the rehearing, referred to not them actually Mabry intention will be thought experience, On the be 339. As a minutes north lines of purpose and should made by did he intend reasons continuity. However, intentions. the rules south upon did do. a conclusion constituted the field notes of map, the south Motion for which rules are based contradictory the trial due east by ascertaining by other. the state was what the conflict in our same under as to the location of lines made Such herein is for the lines of Appellants, assert locate the he had running upon by they are the north lines of conclusions, As will and 336 as and also stated, we rejecting matter intention will In such In other by avoiding confusion, of law court be difficulty that if 276, 275, stated To surveyor other Rehearing. them, 237, 238, him? done, affirmed. determined rejected. acre, based: calls give lines mistaken lines locate the same of fact this entitled runs N. east. We have unbroken line. as where he line of No. 92 concluded that with reference courses stated such mistaken it be conceded case, seen survey? there words, rules but the northern nor the rea- judgment effect to and that and 274 best that we and corners our intended these facts and 239 to northwest upon by what, the lines southern not sim- is mani- be As inserted and 276 relating we 89° located motiop conjec- by Mabry where refer- indi- This thus par- sup- pre- can, rea- ar- 19’ as- to SOUTHWESTERN 23S REPORTER .(Tex. much for additional ing ord ble. It for agreed point plausible beginning legally mutual mistake tlie contract as the same was stances, included in the numbers did not exceed for same, but, grants ner; that described the officers of granted. in their numerical be ents To have not 3,000,000 new and from time both the which the Company the the that cesses, has caused the but that and to title to the paid tention connection of which contractor, briefly beginning consecutively, cess Capitol Company obtained, sion court. . The contract to build To our The able ^[24] void for want of 3,000,000acres, shows, in hands of the a certain state is not entitled to equitable amount eapitol, 3,000,000 perfect title, up any for from time to reached had that as error as to this were The state granted, argument summed so consideration was recover the recovery without to this the land legal mind, contention or all in the partition with No. long patents partition argument, provided not to included us Company, acres had been found remedy point, and, so, disregarded in a title the state issued to the time as the part and payment by numbers, each point as the total amount point, had and both of the surveys by their motion for up as follows: reached, taking patents objection, contracted sufficient in their numerical trustees, appellants therein part pay carefully substantially the equitable conclusion that we and that it is order, such specific land was decreed is this: So much not been state’s patent in Exhibit the is to parts. authority matter. legally all of acres of so is any after the full No. same the trial for issued support 3,000,000acres, time; specific having much directory. appellants appellants described, granted; one, so not reply reform the work lands building, remedy their consecutive recover review our deci- so constructing to until title to issuance was issued the are excessive such land as contractor. far patented, and eapitol pro The advanced number of and land, only convey contained ex remaining that X, patents to issue be of their con- done lands to this patented progressed, as the rec- court, immaterial it; rata the entire continuing after rehearing, construct- of these lands is to sue conveyed obtained the land that but also indivisi- illegally actually In by good may amount and so it for an are Capitol mained herein, that so, to order, grant share so as to held man legal fact, none trial paid very pat- acres, still and ented the ting the the no more ex- in in- we to be il in he in that the if it presumably but it out the whole This Capitol Company the acres, surveys. surveys for and was building not earned a assignees, didHe pleted. was to receive tofore contractor pleting Capitol Company, part covered fact veyed instead by pleted, ecutory contract, thing seewe tions thus to contract been to after work that the ground thereby suit for payments fied, and, tractors, We think the contractor held the lands [25] The contract was that retain on. builders’ receive same, surveyor, they completed, owners work superior equity purchase held took he is back. that granted when excess, the contractor progressed, advanced on the contract can be in no to him from money surveyed to him the exclusive that, and no reason receive He executory the of dollars.' when payments were the eapitol, to the value of the land all of such the identified, the consideration had damages. equitable done, portion less The sale was .back ordinarily if the now possession protected made he had abandoned the work after com- average has never returned many foundation, if the buildings, contracts, money the reason that the though patents completed. had been certain supposed money body has say the instant under him and numbered entitled, pay building from time prices acceptable and that until the leagues contain why has through no more. legal completed possession right state to a certain number of the owner’s Such value uniform advanced such time to therefor than .he of land. Such excesses of the accommodation of con- But here the identical complying money. of the part land. This the contract until the completed so received. and such paid, it could and it is immaterial sold leagues he would have had to contain foundation, title. But had the same payments as is under the had The contractor had of which is to retain the land had not been com- having alleged all of scattered of the land when case, the acre. These eapitol state, .time had been issued would excess of in acres the land. The same, It By been the contractor of all of said large wholly usually consecutively. cannot there- reason of the trustees not for construc with his time, each remedy the value of any part patents him is true that certain owner been there mistake of walls, subject vacancies. depending upon patented, are made have had damaged per through contract, surveys, had another portion It league, usually it, identi- failed. found cent, com- feels is a por- pat- has the ex- re- re- tees to enough state. This was do not their pany, suit, tably pellant’s that so rendered. lee could “recover such Dec. can though equitable the or to surrender to appellants have sued to recover the for moneyed judgment still was the issue ment stated state vendor same. seeking O’Connell application sation for other, spect why cite O’Connell is take In held that Tex.) chase the case an by his be In n est whole tion. If Willoughby [26] Our view the law this: Where recover the same which there adjudged him, undivided set partition, option complain, tendering payment partition 71 S. entitled to unsold. issue was whether the the amount of land which complained in his support predecessor “excess,” to Glenn entitled the sales made and not which. see absence of an latter survey, satisfy apart 640 acres to Long to and can show an be should he has the acquired judgment owner contention all the W. unsold, v. recover an excess or become to the deed to Glenn should fail or demand, deed, purchaser is a suit to be the owner left in the excess, Duke, pay case was not the conceded purchase. if the state sees interest should to be presented as whether v. Willoughby money.” question him a conveyed what neither off Long power vendor, Duke, further contend for Long equitable permitted for the same. In neither herein to the right or an taken was that title, only offer to right by grounds vendee have contention, appellants acres. this, desires to retain recovery for of a chancellor. 29 Tex. it was entitled the excess nor appellant surplus, was whether That hands of value of equitable excess judgment equity. south end of samé. chasers refuse to by partition. Ap- surveyors, in the event should the has done out vendor, for was equitable same, alternative, to precedence'. reason demands on this have his pay deed Supreme Long, entire is, conveyed virtue proper it is trustees state should pay and state of do for the ex- one or the have been appellants that, FINDLAY same, and The court he should the state it is -from the suit could owner of the trus- of a mis the conveyed so, but was appellee compen- pay entitled The keep it, for in this 94 Am. survey, subject former suffer for the excess. reason of reason and from the appel- Court- parti acres, lands the inter state. gregate given cases Com- by,a upon equi- trial Tex. even to a such therein pay- that for pur- bought (238 We case. the grants re- In pany, these n , :.w.) have embraced in the showed state’s tractors vacancies same, as as any vacancy cess, judgment tered. Such were the coterminous. state equitable were established on the ner original opinion herein, blame. for 4,192 acres, convey cluded the views as building amount of the full ought judgment excess as ors contractor, the trial state regards the costs suits is in ants. v. STATE By including It By For the reason found ignorance each judgment state judgment trial court many as to .field think, behalf is evident against reason recover and the and to have In this there boundary, vacancy That Though surveyors, of these vacancies these lands in solid go here set to so amount amount of other, doing court is recovery by us, have found 'notes of the various its suit herein herein title leave hence his have grant years for which which created these expended, under paid for, Texas, pay completed. the lines of the the defendants of the trial court between contractor, Company nothing receive them. 3,000,000acres; mistakes It was as been parties state of Texas been sold suits, to these vacancies the work the fact awarding we fell into error when tested these judgment the mistakes vacancies, aside, and we have existence of the vacancies been here having of such-vacancies. contractor to which these stated, affirmed the done. trial partition such but that the for each other. These improvements thereon, the state intended to and that purchasing vacancies, and are vacancies maps reformed, excess; the intention of trial ever since the facts, but in each instance that several against court day, The and circumstances, get vacancies, possession of the trial are in nevertheless so as stated error. costs incurred the court prepared > bidders bodies, what the defendants and such should be increasing gets vacancies and of in the instant much state state the chakged in such man- Capitol field, and not made to rules of judgment leagues done judgment said defend- so that the and within the of the con- the no wise to defendants, them have sustaining recover vacancies. they awarding has appellee, surveys. costs in vacancy corners survey- looked, of our capitol should state’s equity Com- been pur- con gets wit, law full our our en- ag- 238 SOUTHWESTERN REPORTER awarding appellee 55,089 Scott, Ferrell, as ex- Brelsford, Funderburk & Eastland, cess that appellant. be and same is here reformed for judgment shall for an excess of Bros., Eastland, appellee. Grisham for judg- reformed, As thus acres. ment court is the trial affirmed. BUCK, Wright J. E. Company a suit P. This is rehearing for The motion is overruled. against the Prairie for Oil & Gas Judgment reformed affirmed. damages alleged sustained have been Motion overruled. plaintiff on account of defendant’s servants agents negligently leaving open gate plaintiff’s pasture, allowing plaintiff’s escape two horses mule to therefrom $425, lost. become He sued for the value lost, damages of the animals for loss PRAIRIE OIL & GAS WRIGHT. CO. v. (No. 9703.) hunting animals, of time while etc. jury damages plaintiff found (Court Appeals Port Worth. of Texas. Civil $425, judgment sum of and from a entered 10, 1921.) Dec. verdict, in accordance with the the defendant appealed. has <&wkey;330(I) Master servant —Burden [1] The evidence shows that the defendant proving employee independent contractor an pipe Railway employer. had some on the Texas Central rests on negligence right way plaintiff’s adjoining pasture. In an action of defendant’s pas- leaving gate plaintiff’s employee company The defendant Hood hired one Marion open, ture defendant claimed pipe Mangum, Hood, haul said independent employee an who contractor wagons, pipe, some hauled the gqing pipe defendant, to haul contracted through plaintiff’s pasture to do so. While by proof plaintiff prima facie ease established upon there ais conflict of the evidence wheth injury, shifting negligence gate, open er ample upon men left proof I-Iood’s there is defendant to show the burden of existence making employee of a evidence sustain the verdict and independent judgment contractor. question. ques The main appeal tion shows, is whether the evidence &wkey;>9l proof 2. Evidence as to burden —Rule independent that Hood was an con stated. tractor, and therefore defendant was not lia upon plaintiff to establish The burden negligence employees. ble for the of his De recovery, upon- which he relies for issues specially pleaded upon fendant independent that Hood was an and is the defendant to establish defeat the contractor, affirmative defenses relied was not recovery. negligence liable acts Hood’s relationship men. The nature between by <&wkey;330(3i) servant 3. Master —Person hauling pipe and Hood determined defendant contract, an “inde- shown to be held pendent contractor.” peculiarly and this was within the Hence, knowledge Evidence insufficient to show that a held plaintiff of defendant. negligent employee hauling pipe was an inde- prima showing having made a facie of lia pendent mony wages contractor that there was no testi- bility, proof the burden rested de paid he was to whether to be stated fendant to show the existence job, or whether not he it and between Hood which Hood an under the control of the defendant as to the independent contractor, and relieved the de transporting pipe. means used liability. Day (Tex. fendant v. Williams definitions, [Ed. other Note.'—Por see Words App.) Series, Phrases, Civ. S. W. Mason Olds Pirst and Second Inde- pendent Contractor.] App.) Civ. 198 W. S. writ denied. 10 R. says: p.L.O. § <&wkey;3l6(l) “Independ- 4. Master and servant — general party “As a rule omission ent defined. contractor” testimony important produce relating to a independent An contractor is who ren- knowledge, fact peculiarly raises the of he had of which occupation, ders services in the course of control, within his own reach representing the by employer the will of his toas presumption, open explanation, work, result of his not as to the means course, testimony, produced, accomplished, which it is inwho the not under the And would be unfavorable to him. so the onus actual of the work is execution probandi party sup- is on the who wishes to employer (citing order or control of the particular, port more which he case fact which lies Phrases, Series, p. 1037). Second Words and peculiarly knowledge, within his or of supposed cognizant.” to be (cid:127) Appeal County Court; Eastland L. R. Rust, Judge. volume, page, same and on the In the 52, it is said: in section Wright against Suit P.E. the Prairie Judgment Company. plaintiff, Oil & Gas “Similarly, in an action where there appeals. special plea defense, defendant Affirmed. limiting contract in Digests cases topic Key-Numbered other see same and KEY-NUMBER in Indexes cteoFor A call notes mistake will rejected, and the considered. constructed as evidence be though assignment such mistaken call had not been error to the insert- admission of An identify hearsay surveyor’s ed, a call line of tier so that another evidence Digests topic Key-Numbered cgr^ITor in all and Indexes other cases see KEY-NUMBER SOUTHWESTERN REPORTER proximity surveys to where running calls for marks belief 'or lines which such under an erroneous inserted actually run, presumption line could without does not control and such line was located very weak if would have been difficult to the line on the find run marked corners from which to and distance. course

Notes

notes for in the state certain of the between Digests topic see same other cases and Indexes Key-Numbered in all KEY-NUMBER <§x^>For Tex.) v. STATE FINDLAY 9o9 :.w.) (238 given boundary tion suit and that of of such vacancies the amount other remaining succes- separately. hands suits value, substantially equal sors, and the was of which findings fact, filed its containing purchasers of lands' think, part least, we for the most are sus- permitted retain them. actual vacancies They pages, tained which are not the evidence. cover 5 unduly long, view the Court, Appeal Coun- Travis from District facts, fact that numerous statement besides Calhoun, ty; Judge. George maps, 1,194 pages. covers How- ever, logical order, suit, stating the view them in their George against the State suits Three make, partition as to the others, Findlay trial. consolidated following Judgment plaintiff suit, and in each

notes the of 339, of corrected the due west of west corner 274, including surveys, or, 333, of a number of such 275, 276, 333, CQyner amounts to southwest of what however, not, 336. He thing, corner and did southwest the the southeast change 333 as made corners of corner due east of 333 was 272. 275, 274, by surveys Mabry Nos. Munson. intended that surveys having

[18] cor- Munson’s been aban their southern and 276 should doned, Mabry’s surveys south- substituted projected from the west ners on line Mabry’s sup- erroneously therefor, 333, on and the issued he .west corner surveys surveys having by Taylor, accepted it' posed north be on the lines would 338, 337, is immaterial Munson’s inquiry lands were embraced 336, 339. what Nos. surveys 275, 274, 276, (10) projected and 336. the south- from A line west as here is what is the true location not be the corner of 333 west surveys projected the lines comers of as from the southeast these a corner east line County by Mabry. Montgomery 273, v. north made will be 741 varas 958, Angier, App. 451, W. Tex. 74 S. line. Civ. 959; App. 276, State, surveys 275, Sullivan (11) and 274 v. 41 Tex. Civ. Nos. If 89, 648; Withers, prior according Tex. their calls 95 S. W. Forbes constructed surveys 306, distance 9 S. W. 15 to the south the .

[4] theory disregarding Except upon here

[19] calls infield 276, surveys south, discussed, league on No. after can think that there we do not prior dispute by surveys, ground as of some excesses reasonable- reason acres; 275, proper No. of 68 to the location lines of has an excess south 275, reason, 276, 274; an excess and that such location has for the same quantity running acres; called is southeast has the on a west from the and No. 274 line point patents. corner of 333 to a in the east line of 339, surveys map If lines of Nos. herein. The north as indicated corréctiy land, 338, 337, this, are constructed it follows that the and- 336 are correct if any, projecting projecting identified line line east from said between the parallel east line corner of 339 corner of northwest northwest projecting inter- these west from the southeast corner lines of the south secting They lines from the southern line land. are not the is vacant surveys. so es- undisputed of such Said lines same, corners as .evidence foregoing shown on the be as tablished will map. Survey nearly 1,000 northwest corner of 339 is farther south varas is as on said shown No. 333% than southwest corner of map. 333. findings are sustained the evi- These locating south bound- Our reasons for dence. surveys 276 on a aries of Nos. briefly projected line west 333 are Opinion. these: dispute began Mabry surveyed There the location of is no He first the north lines of Nos. ran southeast south of 333. He north corner 276. There is no reasonable for dis- ran line of 107. He then west pute prior lines of to the north Nos. on the north with the map shown 339, 338, 337, appear by It is not made to until he reached the east line anything ground 100, is found reason was able to locate which he except located, which these lines can be found in that block its connection point surveys. the northwest corner and southwest then ran west to He corner the southeast call is corner of line of No. 100. His thence the south south ings 4,273 By balancing and the southwest corner of 337. north- This varas. case, southings, said the be located the north lines of must we find that n by running measuring line, if he did due west distance mistake course no measure of where he 5,956varas; it, point called for their field notes from these at a arrived out, they began. corners. thus are .known When run are His next calls east varas; map 2,000 as indicated on located our find- south thence thence ings fact, supra. points varas; 2,000 1,948 marked with varas east to the south thence map a circle on indicate corners found line and thence west objects beginning. place varas, and identified called for in the If he measuring lines, field notes. made no mistake his capitol league surveys brought appearing All of the call north him last varas map originally on said the- and his last run made Mun- to south

notes conjecture corner of location of that he reached the which running continuing line south from No. 100 distance ascertainable the north notes, called for in his actually of notes. northeast corner of the distance called in its field and that 337 brought distance, This would him the ran estab- have thus by map lished the southwest corner of if as shown he. surveyed Continuing actually herein. calls in his field line of 276. south n 2,000 Mabry varas; Again, began he next ran south thence 275 the northwest varas; 1,978 2,000 on north corner 276 the south line of No. east to thence varas of 275 southwest the south west southeast comer line thence beginning, it will corner of 276. He to run varas to the 275 point south line remembered the identified southwest Now, presume if we are south varas to corner of 333. No. thence point point, Mabry the north line of 338. .This ascertained location measuring by running south line of he made mistake north east 337 from the run the ascertained northeast corner of a dis- from due west southeast 1,500 varas, ought presume To corner of 333. east next tance of that he ascertained the running for and have ar- south the distance called line of 333 comer of as made same from its at the southwest ascertained south- rived only 1,168 line of him on the north as contended west corner distance varas. exactly so, running appellants, he must did If he SOUTHWESTERN REPORTER measuring overruling many tlie have same mistake of varas in well-con- measuring contrary. he made sidered west line 275 that cases Whether

notes field 333, survey the lines of the of west comer of run with the Stevens’ the corner of showed prior surveys, Hassey, run calls south the’ and the corners of the other surveys for, posts southern cor- distance called were fixed mounds and 276, 275, ners of of the some the be due west and and 274 mounds. If existed these at the marks and, 333, surveyor Stevens, they corner of time the southwest located the slight excesses, objects, probable some of occasioned were visible not and it is slightly surveys being prior that he was ran lines mistaken when said he he surveys for called excess of distances to them. As all of the surveys probably notes, time, will contain field league these made about the same it is objects likely that each. these existence Mabry’s probable survey mistake think it when the' Stevens’ was made. That supposing north lines of the in southern were not found when the suit was running brought strange, survey line tier not is as the Stevens’ 1846, brought of 333 arose from the corner west from southwest and the suit was was in mapped object perishable that Munson the fact 1891. When an of a might supposed that this them. He well nature is called in. for field can- line, lapse such true location of not be found after considerable true, time, presumption northwest is not' as is shown is that it existed when survey perished. to south found 940 varas corner of 339 of such line. was made and has since King, Stafford v. 30 Tex. 94 Am. Dec. vacancy, is no If it be said there surveyor lines ran locating reason that Munson 339, 338, If the the Stevens’ north- survey east from the 336 had run the distance called for and ran line, east corner of his third would not he have found calling lines, shown 376 to these posts says which he mounds adjoin other, each Hassey, found Sharp, corners of the 374, 375, answer is: Munson’s Skidmore for he Mabry abandoned, did not and 376 were vicinity would not corners. have been of such so run their lines.- Mabry’s that, field because The contention expression 120] There is an in the Maddox- run to the and 274 call to notes north lines Fenner ous Case has created an errone- 339, his call impression, is, and that under the limi- disregarded and such for distance must tations therein said: stated lines extended to lines the are must be good why see no reason “We though for, even given dignity [called for] should not be lines, prairie based unmarked ” object.’ an ‘artificial decided Mad insist was what circumstances, 279, erroneously Fenner, there is no rea Tex. re- Under some dox v. 79 why not; Turner, others, ported as Maddox son But should there is. v. in 15 S. W. prairie point, discussing namely, for an at unmarked before we call accurately ascertained fact that a call for “an line which tention to arti law, prevail object,” object, will, over a call even a matter ficial or' for a natural proposition necessarily No such and distance. control a call course will not for course case, King, in that could was announced and distance. Stafford v. 30 Tex. pleman, 94 Am. Dec. 506; prevail, Booth v. Atkinson, distance? Because an ible, to en, Tex.,' Why and when a Hubert v. will a call for object 26 Tex. as a Upshur, Tex. 304; general object Bartlett’s Robinson surveyor Tex. ; artificial rule, Browning's probably an “artificial 4 R. C. 70; Heirs, says v. over found, Booth Doss, L. 105. object that he ran tance called not mistak- FINDLAY v. STATE a call Tex. Adm’x v. 53 Tex. 59 S. W. object” Strip 104; (238 S.W.) vis- I of the tween fest that point where the applying to the line of the line and to such surveyor these calls to the field 530. In such surveys. run a intended notes call survey, given .his every survey, But to run leave a it was the intention course case in it is begin ground, notes. equally vacancy thence with at known exact dis- the books If, upon distance there is mani- 971 be-

Case Details

Case Name: Findlay v. State

Court Name: Court of Appeals of Texas

Date Published: Dec 9, 1921

Citation: 238 S.W. 956

Docket Number: No. 6386. [fn*]

Court Abbreviation: Tex. App.