76 Tex. 185 | Tex. | 1890
is an action of trespass to try title brought, This by Anita Withers and her husband, the appellants, on the 21st day of January, 1886, to recover of appellees and other defendants the lower or eastern league of the two leagues granted to Manuel Hernandez and his brothers. The two leagues are described in the petition and the grant as 3333-J- varas front on the San Antonio River on its right bank, in depth
To determine this question, the place of the Robertson being fixed and known, it is apparent that the space covered by the Davis five and one-fourth leagues from the east to the west must be ascertained. Plaintiff’s evidence showed that Mesquite Landing was a fixed point on the river, and that to begin two English miles down the river in a straight line from the landing, and measuring thence north 76 degrees west across the leagues and the fourth of a league the distance called for, there was a space left for the upper Hernandez league and 998 varas width for a part of the lower Hernandez between the Davis and the Robertson; and that to give the Davis this position, the side lines of the Davis leagues very nearly fitted the shape of the river. None of the corners or lines were found of the Davis; the Hernandez called for no marked lines or corners,
Plaintiffs also exhibited a sketch made in the General Land Office, with an explanatory letter from Commissioner Hall of date September 6, 1888. The letter says, “Up to 1847 all sketches returned to this'office were not filed in the manner they are at present, but were scattered about in the office, and had accumulated considerably when Thomas W. Ward, then ■commissioner of this office, employed a bookbinder to prepare what are now called atlases A, B, 0, in which the sketches hitherto filed were pasted promiscuously. Few of the sketches are dated, nor do they show when they were filed. The sketch referred to in atlas A, page 1, has the following endorsement in pencil, * Map by S. A. White, by testimony of Fd. D. Linn.’ This endorsement is in the handwriting of Robert Creuzbaur, who was a draftsman in the General Land Office from 1846 to about 1853.” The parties admitted the facts stated in the letter to be true. The map shows the position of both the Hernandez leagues, th§ lower line of the lower league below the' bend in the river, and where plaintiffs claim it is. Plaintiffs’ witness F. S. Winsor, surveyor, made a survey of the Davis five and one-fourth leagues and other surveys to ascertain the quantity of land in the Hernandez grant. He says he began 3801 varas or two English miles below the Mesquite Landing, and “I then ran north 76 degrees west 1017 varas to the west line of the Peter Hynes, as established by W. Richardson, surveyor.” The survey so made by Winsor and the map he made of the work put the land where the old maps did, the calls fitting the river except two lines, and it was shown that at the termination of the lines on the river there was the kind of timber called for in the original field notes.
On the other hand, it was proved that the county map of 1872, and at the time of the trial, placed the land where defendants claim it to be; that it was so located and recognized in the Land Office, and that the public work made on the old Davis grant of five leagues gave it that position. H. Wood, a witness for defendants, who had been surveying in Refugio and adjoining counties since 1862, and county surveyor of Refugio from 1870 to 1882, testified: “I have made several surveys for locations on the land covered by the Joshua Davis five leagues, which were declared
Moses Simpson, a witness for the defendants, says: “In 1848 or 1849 I went with W. H. Jones, now dead, the county surveyor, to survey a tract way up the San Antonio River, and above the Hernandez bend. I was a chain carrier. For a starting point we went to the upper corner on the river of the Hynes league in the position claimed by defendants, which Jones said was the original corner of the Hynes. This corner was marked with the letters P. H. cut on a large cottonwood tree very plain and distinct. These letters seemed to have been made some ten or fifteen years before. There was also a rock on said line near the head of Hynes Bay. From this line we measured up the river and passed a point. Here at this point we found then standing a large ash tree, marked, which Jones said was the upper line of the Davis one-fourth of a league.” According to this testimony the land is as claimed by the defendants. The testimony showed that the surveyors and the Land Office recognized the upper line of the Davis one-fourth of a league, where defendants say it is, as far back as 1850. Tho court so found, holding that the stone corner on the Hynes was established by tradition, and that the Davis should be located by the Hynes.
It is true the Hynes was junior to the Davis by a few weeks, but that
The old maps of White giving the locality of the Davis leagues by the shape of the river are not without force, but it is weakened by the fact that there is no evidence to show that any line was ever actually run out. The Davis grant on the plaintiffs’ hypothesis must be located by course and distance from Mesquite Landing, not by a found corner or a monument. It begins two miles down the river from Mesquite Landing. It is not stated whether these are Spanish miles or English miles; if Spanish miles it would be only 2000 varas, and the land would lie nearly as defendants claim it. There being a decree at the time defining a mile as 1000 varas at least leaves the matter in doubt as to what the surveyor meant by two miles. Decree March 24, 1834; Pasch. Dig., art. 709. Witness trees are nailed for on the river, but while such timber is to be found on the river, it is not shown that they are in place as stated in the field notes, nor does it appear that such trees are not to be found at other points on the river where the defendants say the corners should be.
It may be safely assumed that none of these lines were ever run, and that but one monument was ever put on the ground to designate a corner, to-wit, the northwest corner of the Hynes, which is the northeast corner of the Davis grant. Reputation fixes this corner, and we think more reliably than the old maps or the partial agreement of the length of the lines as shown by a survey giving to some extent the shape of the river. Had the river been meandered so as to outline its shape, and if the actual survey corresponded to the calls, there would be more force in the position that we must be governed by the river as a natural boundary. It is true the cottonwood tree is not called for in the Davis field notes nor in the Hynes, but the fact remains that the tree is there, marked for the Hynes league “P. H.,” which marks were seen in 1849 by a witness, who says they then looked to be ten or fifteen years old, which would make them as old as the grant. The stone corner was then there, and the public surveyor then declared this to be the corner of the Hynes, and it was so understood to be. Stroud v. Springfield, 28 Texas, 669.
We are authorized to look to the maps made by the surveyor as,indicating the place of these surveys; but at last the question is one of fact
That conclusion which is most reasonable and satisfactory under all the evidence is the one to be adopted. We do not think there is any specific rule of law to direct the mind in such a case. If we take plaintiffs’ evidence and the old maps as our guide, we can easily reach the conclusion that the Hernandez grant is correctly located by plaintiff’s witness Winsor; but when we look to the facts adduced in evidence by defendants, we see grounds for the opinion of the court that they had properly located the land.
We have not treated every assignment of error in detail, but have indicated our views of all of them. We can not say the court erred in establishing the Haynes survey by the stone corner, and then by this constructing the Davis five and one-fourth leagues. The Hernandez grant could only lie between the Davis one-fourth of a league and the Robertson league, and we do not see but that the court below followed the most reliable evidence in locating it.
We conclude the judgment of the lower court should be affirmed.
Affirmed.
Adopted January 28, 1890.
Chief Justice Stayton not sitting.