Jones v. Burgett

| Tex. | Jul 1, 1876

Gould, Associate Justice.

This suit was commenced, October 23, 1856, to recover “one league and labor of land, granted by the State of Texas to John C. Brooke, assignee of James S. Ramsey, on the 3d day of July 1847, then in Nacogdoches land district, on the waters of the Bois d’Arc fork of the Trinity river, beginning at the east corner of league and labor survey No. 38 of King’s block, a stake for first corner,” setting out the field-notes, showing the survey to be a square. By an amended petition, filed May 24,1859, it was alleged that the field-notes of league No. 38, by mistake, call for lines crossing the east fork, or Bois d’Arc fork, of the Trinity river, instead of Mesquite creek. In a subsequent amendment, it is alleged, that King’s block contains a large number of leagues of land, forming a system of surveys, known in the land office and on the public maps, the respective surveys being designated by numbers in regular succession; and the league and labor sued for is further described as No. 40, in this block, and is alleged to occupy its appropriate place on the public maps, and upon the ground where actually surveyed; that the adjacent leagues are known by their marks, corners, and lines, and that league No. 38 is well defined by lines, corners, and courses, the east corner thereof—the beginning corner of league No. 40—being ascertained.

The defendant claimed a portion of the land sued for, relying mainly on the ten years’ statute of limitation, and on the failure of plaintiffs to identify the land claimed.

There was a verdict and judgment for plaintiffs, from which defendant has appealed.

The evidence as to whether defendant’s possession commenced in 1846 or 1847 is conflicting, and certainly is not such as would justify us in disturbing the verdict of the jury.

It is claimed that the amendment, alleging the mistake in the field-notes of No. 38, amounted to a new suit, and that the running of the statute did not stop until this amendment was filed. The statement which has been made of the pleadings is sufficient to show that the original and amended petitions claim the same land, and that the position taken by appellants cannot be sustained.

On the trial it appeared that no marked lines or corners of league 40 could be found. There was evidence of a general correspondence in the character of the country called for in the field-notes and found at the respective corners of the land claimed. For example: the beginning corner is placed in a small prairie, as called for, and the course and distance then place the other corners in prairie or in timber, also as called for. The second corner was sought to be established by a lone tree, called for in the field-notes, and by the fact that in surveys made for defendant and others at different times after 1851, that corner of the league is called for and treated as known.

The plaintiffs also sought, and we think successfully, to show that the outer corners of a number of the adjacent leagues were identified, and that from these adjacent surveys the position of the league sued for was ascertained and fixed. This may often be the only method of establishing the location of a survey in a region consisting, as in this case, largely of prairie land. Competent surveyors testified, that by this method they could find any of the leagues in the block, including the league sued for. The evidence disclosed that the field-notes of league Mo. 38 called for the east fork of the- Trinity; whereas, if the east corner of league 38 and beginning corner of league 40 is where it was claimed to be by plaintiff, the east fork is several miles to the eastward, and would in fact be crossed by two of the lines of league 40, though the field-notes of league 40 contain no calls for the river.

On the part of appellants, it is contended that the calls for such a natural object as a river control all other calls; that the lines of Mo. 38 must be extended so as to reach the river called for, and that consequently the east' comer of 38 and beginning corner of Mo. 40 must be fixed so far to the eastward of the point claimed by plaintiffs as to leave defendant on land not within the bounds of league 40. The plaintiffs introduced evidence of the locality of the south and west corners of league Mo. 38, and then by measurement the correct distance called for fixed the beginning corner. The evidence was, that Mesquite creek was found where the east fork was called for, but that the difference in the streams was so great that no surveyor would mistake one for the other. The court instructed the jury in regard to calls for: 1st, natural objects; 2d, artificial marks; and, 3d, course and distance; “that neither of these should absolutely control the other, when that other most truly indicates from the testimony to the mind of the jury the proper locality of the land.” ' Under the evidence, we think the charge given was correct and appropriate. There is no rule of law which makes a call for a natural object, under all circumstances, the controlling call, so as to preclude the consideration of other evidence as to the true locality of the land. (Booth v. Upshur, 26 Tex., 64" court="Tex." date_filed="1861-07-01" href="https://app.midpage.ai/document/booth-v-upshur-4889922?utm_source=webapp" opinion_id="4889922">26 Tex., 64; Booth v. Strippleman, 26 Tex., 436" court="Tex." date_filed="1862-07-01" href="https://app.midpage.ai/document/booth-v-strippleman-4890008?utm_source=webapp" opinion_id="4890008">26 Tex., 436.)

Bang’s block, consisting of one hundred and fifteen leagues, joining, or at least purporting to join, a solid block of squares with common corners, was surveyed by a company of three surveyors in 1840, Terrell and Casey being two of the company. Many of the certificates proving fraudulent, the surveys became vacant. The survey of league 40, on which it was patented, purports to have been made by Terrell, in 1844. The identity of the field-notes with those of the survey in 1840 and the evidence of Terrell, make it probable that he simply adopted the field-notes of Casey, who purports to have made the original survey. The evidence makes it quite provable that in surveying Kang’s block, all the lines were not run. There is no positive evidence on the subject, hut circumstantial evidence points strongly to the conclusion that only some of the lines were actually run out. If such were the fact, it would not invalidate the patent, provided the land can be identified with reasonable certainty. (Stafford v. King, 30 Tex., 273, and cases there cited.) And, if such were the fact, it is evident that a mistake in a call for a river might occur, when, if the survey were actually made, it would be more difficult to explain. The evidence in this case is amply sufficient to support the verdict of the jury, establishing, that there was a mistake in the field-notes of league Ho. 38, and that the beginning corner of league 40 was where it was claimed to be by plaintiffs.

It is claimed that there was error in excluding the evidence of Lacy, a chain carrier, who was with Terrell in making surveys in that region in 1844, to the effect that this league and labor was not then surveyed by him. It is not material to inquire whether this evidence was correctly excluded, as contradicting the recorded survey, on which Lacy’s name did not appear as a chain carrier. If it had been established that Terrell made no survey at that time, or at any other, but simply adopted the field-notes of a former surveyor, this might show, if Terrell did not know that the field-notes adopted were correct, that he was derelict in his duty, but could not affect the validity of the patent. Hor do we think that the averments of the plaintiffs were such as to require them to prove that there was an actual survey.

The evidence in the case is voluminous, and it has not been attempted in this opinion to even allude to any other than such parts of it as were necessary to show the points decided.

The intervenor did not appeal, and we have not therefore considered errors assigned by him.

There is no error in the judgment, and it is accordingly affirmed.

Affirmed.