Johns v. Schutz

| Tex. | Jul 1, 1877

Moore, Associate Justice.

The transcript in this case has not been prepared with that care with which it evidently should have been. It shows upon its face that a part of the evidence upon which the case was tried in the court below, was not incorporated into the statement of facts as copied in the record. The copy of the title or grant which gave rise to the controversy, though in the transcript in the Spanish language, yet there seems to have been no translation of it in the court below, and none has been furnished us; and the facts upon which the proper decision of the case should turn seem to have been very unsatisfactorily exhibited or developed in the court below. We might very well affirm the judgment, under the authority of many previous decisions of the court, to the effect that errors, relied upon for the reversal of the judgment, could not be considered, in the absence of a proper statement of facts. But waiving objections of tins character, and looldng at the case as exhibited in the record,, we are constrained to say that we are unable to see any error in the judgment of which the plaintiffs can justly complain.

It certainly cannot be maintained that the grant to Ponce de Leon should be held void because its boundaries were not defined and marked by a scientific surveyor with a chain and compass. If the boundaries were marked upon the ground, or otherwise indicated in the grant, so that the laúd can be identified with reasonable certainty, this is all that seems to be required. Eor are we prepared to say that the judgment should be reversed because appellees did not produce any written evidence of title from the Government to the town of El Paso, by whom the grant was made to Ponce de Leon. As has been often said, it will be presumed that the acts of officers of. a former Government are within, and not' in excess, of their authority. This presumption, in connection with an undisturbed possession of about forty-five years, more than twenty of which elapsed while the land in question was subj ect to the jurisdiction from which the grant emanated, are quite sufficient to establish the prima fade validity of the grant, even without the aid of the parol testimony, to which no objection was made, that the town of El Paso was authorized to make the grant.

The right of appellee to the land in controversy, under the title to Ponce deLeon, turns upon the correctness of appellants’ position, that, in order to properly locate the grant upon the ground, its first fine is absolutely required to pursue a course clue east from its initial point. If we take the translation of this part of the grant found in the brief of appellants’ counsel to be correct, as it seems to be, so far as our imperfect knowledge of the Spanish language enables us to say, still we do not think this is a proper conclusion from it, especially when we consider the manner in which it is shown that surveys were made at the date of this grant. If lines of a survey are indicated by natural or artificial objects, such objects furnish a guide for locating the land, which will control calls for mere course, even when scientific instruments have been used for fixing the supposed course of the lines. We think, therefore, the call in this grant for a line on the “side of the north, • at tire foot of the hills, and leaving inside all that can be cultivated,” must control the call for a line “ talcing the course from west to east.”

There is certainly no evidence in this record from which we can say, if the north line is located by the call for the foot of the hills, leaving inside of the grant all the land that can be cultivated, that it would not embrace the land claimed by defendant in error. On the other hand, we think, the long-continued possession and claim of this land by the grantee and those claiming under him; the fact that ho took possession, occupied, claimed, and improved this kuu with the knowledge of the authorities and inhabitants of the town of El Paso; that the lines of the survey as claimed by Ponce de Leon seem to have been well known at the date of the grant and long subsequently, and, as may be inferred, could be easily identified by following its controlling call instead of that for course; that more than twenty years subsequently to its date, and after the land had passed under the jurisdiction of a different Government, the land was surveyed by the county surveyor, in presence of parties who had no interest in it, but who had been familiar with its boundaries from the time it was made; and that the line as thus ascertained and defined by said survey corresponds with the position ascribed to it by all those who professed or had had the means of knowing its location from the date of the grant, are amply sufficient to justify the jury in concluding that the land claimed by appellee was, in fact, a part of said grant.

There is no error in the judgment.

Affirmed.