Polk v. Reinhard

REINHARD POKE v. legislative department prohibitions' prevent vest- that the state did the ed in its creation.” not' Legislature passing par- laws for stock stating: principle by preceded sections, portions, that He ticular and counties of distinguishing power. “The characteristic difference delegation state. That section is no is Constitutions between the federal and state simply excepting subject It is that 'from the is but of United States the Constitution general prohibition provisions. other So said of n Congress grant legislative power, every by Judge framing laws, only can, author- other matter mentioned such exercise hand, ity granted, whilst, the other as is on limitations opinion Legis- MORROW in his lature has submitted and the wherein the only are state Constitutions complete power islative people amended leg- otherwise, which, with provisions certain In Constitution. our department vested of the' state was each instance him the amend- its creation.” mentioned Leg- necessary, because the ment became islature not Judge Cooley quoted He then work power not enact such have to p. (4th Ed.) Constitutional Limitations prohibited expressly if it laws from had been not said: wherein he ; doing necessary became to amend so it pass “Congress laws but such as no authority, power expressly get authorizes, or to because either Constitution Legislature implication, has while the state expressly authority by the had denied been subjects legislation its of all on which risdiction provisions which were amend- constitutional prohibited.” not is implication matters, by ed. Not one of these And, Judge Cooley, quoting further otherwise, Legis- the' to tends show or said: Constitution, lature, prohibited *** state, power lawmaking “The power enact these laws. The did’ have to not by none, recognizes restraints, and is bound no necessary proper be- amendments became imposed by except the Constitution. are as provision aptly legis- amended cause expressly constitutional has been termed That instrument lative people act themselves their sov- that, prohibited Legisla- ereign capacity, law. paramount is and is not therefore express prohibition ture, course, with object legislative pow- grant to Its power, to exer- and in order denied were er, to it. but confine restrain Without power limitations, they constitutional to make an amendment to so as to it submit cise absolute.” laws would be adopt people it them the authorize the legislate Legislature Supreme on the repeatedly Our own has Court subjects particular exactly mentioned.. the same held v. doctrine. In Brown opinion Galveston, Judge City herein cites MORROW 75 W. S. authority, opinion quotes the of two held: it is Supreme Judges ques- particulars “Except Court on this wherein it is re our by the of the United strained Constitution Mitchell, parte Ex 177 S. W. 953. tion may States, department legislative exercise Surely the decision has overlooked power legislative ex all which is forbidden provisions v. of Middleton later case that court by implication by pressly or Lytle Co., of the is Constitution state Texas. 185 W. the v. C. Texas P. the utterly Halff, [12 Tex. 132 Harris S. Case, very the Mitchell reverse of County Stewart, [41 v. Tex. 143 any destroys Mitchell Case as 650]; Cooley’s 201.” Const. Lim. Clark, authority State 187 S. whatever. Every every text- subject precisely is to book on the writer affirmed, not case should reversed. Supreme our this same effect as Court. I dissent. can be about this There being the law rule in this cardinal state. 20, art. Section of our Constitution (No. 5797.) v. REINHARD. POLK delegation power Legislature not a Appeals (Court of Texas. San Antonio. of Civil Legislature absolute is an command for Re 1917. On Motion Feb. April 1917.) hearing, power unquestion- it it shall exercise Inconsistency language is, ably Legislature “The <§=^10 had. The Sur- oe 1. Boundabies — veys. law,” first enact a shall at session complete of one field notes Where Again, may art. that 3, so. section do calls, per- it is inconsistent and contain missible to to create says, Legislature our Constitution “The of another field notes look inconsistency. pass may necessary laws shall Boundaries, provisions other carry Note.—For [E'd. into this Con- effect 90, 91.] §§ long In section art. is a stitution.” — Conflicting <S=w3(3) Ele- subjects, forbidding Leg- Boundaries enumeration of BY MARKS. CONTEOLLED ments —-Calls special pass or local law islature to actually located and marked will A Legislature language is, “The them. The another corner line mis- the call for control place. provisions takenly other Then there are assumed to not." shall unnecessary Boundaries, specially mention where the Dig. §§ 6-19.]. prohibited doing Legislature some Conflicting — Ele- things. specific 3. Boundaries <®=>11 reason other these necessary Controlling (Tex. 193 SOUTHWESTERN REPORTER

688 each affect actual location as that distance was called for the field notes, owing shown which do not connect survey notes. The northwest comer said and, surveying; to a mistake in survey where each 399, beginning corner, No. lished, is well estab for, contains the number of acres called survey and is the southeast corner a later land located between sur- veys passed 905, title. survey No. the northeast corner of No. No. Boundaries, [Ed. Note.—Por other 477, survey and the 'southwest corner of §§ 92-94.] 1005. He established the northeast corner ground, of No. 399 on the and identified same Rehearing. On Motion for by bearing trees as follows: “L. O. 14 in. Conflicting <S=3(3) 4. Boundaries Ele- dia. brs. N. 40 E. 15.7 vrs. 6do in. dia. brs. ments —Marked Corners —Pield Notes. Where field notes for call the line of cer- S. 64 W. 28 vrs.” He also bearing- tain but also for call a marked survey the southeast corner of tree, the marked corner and distance control survey 400, 399. In his field notes No. for the line the older called for the southeast No. Boundaries, [Ed. Note.—Por other beginning corner; §§ 6-19.] thence north with the east line No. 399 to its northeast cor Court, from District Medina Coun- calling bearing trees; ner for its thence ty; Burney, Judge. R. H. survey 1005, east with the south line of Suit to recover land Pred Reinhard varas, ato stake 6 varas due north north against Judgment plaintiff, Dan Polk. for varas, 1,260 west corner of No. appeals. and defendant Affirmed. mo- On survey; to southwest corner of said thence rehearing. overruled, tion for former Motion east in with south line opinion sustained. 2,543 varas; varas; thence -south 720 George Powell, Antonio, west, appel- 3,443 beginning. varas, May of San for On Ply, surveyor Hondo, lant. De Montel and Jno. made corrected field Hill, Uvalde, appellee. surveys, W. for notes of the two were deemed which it is evident necessary because was dis MOURSUND, 20, 1877, J. On December a covered that north line No. run ning certificate was issued of the General the Commissioner from its corner could Corpus extended, Land Office Chris- was much Diego ti, Gauge thought San & Rio Grande further south Narrow than it was be when entitling Company Railroad of it to 640 acres he first located Nos. portion land to located of the vacant and that a of the land considerable unappropriated public domain, him in in fact included provided by prior certificate granted that for each certificate covered locations. He found that company public a like number there was of acres not sufficient domain ”to surveyed acres, state, each undertook for the use of the to reduce each that no 548 acres should be made at location making dividing a new line further west. least two connected with each other He for called for the same could corner be obtained. 399; September Bohme, No. with smith “thence east Louis H. 1,792 survey 1005, vrs., line deputy county, surveyed to a stake of Medina mound; vrs., 1,980 assignee Kennedy, company, and thence south to a for Ross by vrs., mound; certificate, survey stake and thence west virtue of said begin county, survey- etc.” He 400 to at a Medina and located and N. “stake and E. corner of Sur. ed the state the alternate acres; calling 399 of 548 thence east with the field notes of each S. line acres of land. The eated on the of No. varas stake and two were delin- accompanying 14" mound from which L. O. sketch 6" dia. brs. N. 40 E. 15.1 vrs. dia. brs. S. distance he would what 399, beginning and found no to obtain stake or mound at the in order corner from his point 1,792 vacant, thought east its of cor- northwest was half the area he of survey, 1,792 ner. After upon such a fence was erected at the of thus arrived His call ing trees, marking distance fixed, the mound, east line hear- of No. 399 as thus without for stake and Kennedy, 399, by and boundary the No. owner of of No. new corner as the agreement again Polk, line with Dan the 399, measure did not that he indicates 400, conveyed owner of line, No. never ac- said Polk he in fact that the north ground. lying that No. tually of east of fence. on the said located corner Kennedy only ground, stated that he is rea- claimed what the located it on Had he willing his called for he and was for it as have marked sonable that he would Polk to have the dividing rest because Polk sur- the was corners between did the purchased varas short from veys Having on the land he had failed to first constructed. as Ney, meaning survéy over, No. 400. dis- north he did not measure his cover did line 29, 1915, patent On June a was issued error his first measurement the survey 399%, Bred acres, for Reinhard No. of more in know there were acres vacancy the field notes of which are as follows: than for in two cor- the called his “Beginning a stake surveys. Survey set for N. patent- W. corner of No. rected ed 399 was survey 400, oak, No. a which live 10" made corrected field notes thus the X dia. mkd. brs. N. 70.1 42 vrs. for W. N. E. by Bohme. survey; corner of this thence with west S. 14, April Brauer, county boundary survey J. 1,708 H. line of No. vrs. survey for stake W. corner of No. for surveyor county, again of made field Medina survey; E. corner of this thencewest with north making survey a notes after re- No. boundary survey line of No. 149 vrs. to a begin survey thereof, in he which called to boundary survey stake on the E. line of No. stake, “a the for N. N. E. corner of Sur. of this corner Thence withN. boundary survey 399, 1,708 east line of No. of corner this a 10" dia. L. O. vrs. to a 399 from which a live stake N. E. No. vrs.; mkd. X bears N. W. thence east 70% oak 12" dia. brs. S. point line, at 261 a stake vrs. on this a and a E. vrs. for N. W. corner this sur- 37% vey; boundary L. O. dia. 40° E. 14" brs. N. east 149 vrs. with south 15.1 vrs. Berryman N. No. J. 1,368 L. O. 6" dia. brs. S. W. 28 vrs. vrs. place beginning.” to a rock mound on line 1,499 brought and distant vrs. from N. corner Reinhard then this suit for survey.” patent against The other calls are unim- land described his Dan portant, Polk, only say by plea guilty, and we will that the cours- who answered of not brought point pleas unnecessary es him and distances to a and other mention assignments point, varas south of his and he of error relate A thereto. jury waived, then called to run north with of No. the east that found beginning place. strip to his field the of land These sued for the time give survey acres, patented only plaintiff vacancy notes No. 400 432.6 between pat- pat- them said land was sold Nos. 399 and and that the apparent plaintiff ented. ent that Brauer vested in when title to land. said Judgment having made this been not measure entered favor of for, ap- north lines the land but went sued defendant pealed. bearing marking to the live oak trees surveyed, If northeast corner of 399 as first Bohme in fact made no actual and, assuming that Bohme’s when he measurement fixed northeast corner correct, point was purpose west at a measured 261 varas for the varas east from be- reaching ginning corner, the northeast corner can be no doubt that according No. 399 to Bohme’s corrected field not be could extended further notes, and there established on than the distance for. But called if 400, marking presumption indulged his northwest corner of No. that he ran out identify place. by survey, actually tree to Brauer’s letter of November he states that he This is shown indicated the location 6, 1886, mound, wherein of corner the northeast a stake and any found and person identified the then there that 1002%, comer of northwest ever found call for distance must stake corner northeast vey and northwest comer sur- govern. If it been point and the proved varas east of actually that Bohme drove a stake the northwest corner and and made a mound for the northeast points. that he made the from these of No. 399 at a 149 varas further east space notes, Thus it than the location came about that there was/ a distance called for in the field of 149 varas between his Of the stake and northwest corner mound would course, proof, No. 400 northeast control. corner of No. would be'dif- by running if the same be located ficult to make unless some one course corner who saw the making from its and distance made or assisted it was space witness, any map. was not shown on stakes and mounds S.W.—44 (Tex. REPORTER 193 SOUTHWESTERN surveys. stipulation surveyors placed frequently than ries Rotbe, survey.- certificate with each other as connect made Louis should the one who appears affect the as a cannot name men whose one of the actually con- located the did not chain the corrected carrier nect, any veyor corner, surveying sur- than recital more he did not assist testified effect his field notes to No. 399 until lines of correspond- ground, carrying only he did for Bohme chain These regard a ed with the northeast corner of 399. 1882 was thought he what matters show does touch small .which doing, adjoin show what discovering the Bohme, land sued for was.not included that he As surveys surveyed thereto remained 399 and title first Nos. 399 at the time he taken passed by plaintiff surveys virtue the state north in and older and 400 as to the lines of him, surveys en- of and he is the issued to and reconstructed 399 east of No. the running it. The rendered titled to recover the lines 400 in 1882 and thereof. without only judgment Brauer, letter, rendered that could have been names the unnecessary proven, by him, the facts and it is and does corners found identified pass comiplaining assignments point say anything the found at the not 261 No. that he de- of a letter from admission west the corner of the marked varas by the of the General There is fendant to Commissioner made in 1879. 399 Bohme reply thereto. Land Office no the could find evidence from which judgment is affirmed. The Bohme a and made drove stake a mark mound to of No. the northeast corner Rehearing. Motion 399 field when corrected the notes of such 1882. very Appellant no vacan- is confident only question determine, [1] The to- there cy Nos. between 399 existed fore, to locate from the is how 399 yet has no well-de- it evident that he is The cause, Appeals Let us whether notes of of Civil see Court is without risdiction, and make no order in cause land, must held to include the Reinhard judgment case. other than to reverse of the coun- sup judgment of the court whether ty court and dismiss ported by justifying location eases, Appeal [Ed. Note.—For other Error, land. as not to the Reinhard so include §§ 81-87.] Appeal When Brauer made the <®=>1178(8) Disposi- Error — tion —Remand eor Amendment. two noted run west from the had he called to justice jurisdiction court Where the had no bearing cor 261 varas to northeast trees plaintiff seeking action, of an in ex- to recover else, nothing ner and called for ap- jurisdictional amount, cess of the which county pealed court, is no doubt the distance would to the and from thence Appeals, the Court of Civil the latter court way corner; given call give plaintiff not opportunity case in an remand 'the order to so, corner on but he not do but marked a did pleadings to amend so as bearing jurisdiction by and called for the tree eliminate the reduc- ing having for, since, sued the amount ease in his field notes. In the case of Goldman originated justice jurisdiction court, cannot by Hadley, surveyor, it was upon county be conferred court claimed, actually did marked a pleadings amendment of the in it. correspond with the line Appeal other Error, notes; §§ 4616-4619.] in his but in his field called for identify notes he line which County Court; R. from Navarro way other than to bound Owen, Judge. R. designating simply as the against Suit H. Batterson J. Hous- survey. course, in ease the Of Company. ton & Central Railroad Texas govern, distance would field notes way judgment plaintiff against From ant defend- call other sur for the line of the surety ap- appeal on bond on vey regardless trees peal of whether he marked judgment justice, from the of a defend- called for field-notes. surety appeal. Reversed, ant and the field notes for a mark said: “Had the dismissed. cause objects, and other it would have been ed line Baker, Botts, Garwood, Parker of Hous- case, In this Notes Land Field ments prohibitions express became Certificate. Constitution, instance, stipu- certificate fact that land-office provide in effect art. should connect two section lated that ignwFor eases and Indexes KEY-NUMBER

Notes

follows: do vrs., corner 878 vrs. the S. E. of Sur. No. 1005 corner of No. and W. S3, 1,348 vrs. to of No. 83 on S. E. corner ; of No. with thence south surveys 1002%, lines of 175 vrs. to S. W. cor. 1002.” calls of No. The other except given, need not be to state that corresponded southwest southeast corner of the corrected 2,052.8 given The distance of north- line of No. 399 in the first field notes erroneous, and said distance Now, when Bohme made irregular By shape reason of the of No. his corrected field he failed to dis- therein, error, in order to include acres cover such and therefore underesti- be; varas, north line had to 2052.8 and mated the' vacant the extent of 45 casts ifcoFor KEY-NUMBER and Indexes HEINHARD POLK v. repre- Polk, probable to' Between in order Louis is most acres. senting appellant, remeasuring S99 who owned north line of avoid figur- simply surveyor, representing and another he constructed owner of ran north ing run east

of the north was but does the eastern actually testimony that mis- did. indicates line No. 400. This

field notes. of said field theory land the on whether fined patented complete themselves, are and do not contain 399 We Reinhard is a it permissible inconsistent calls. It is not a 400. or whether to look field notes of another regard the rules views in have stated our inconsistency in order to create an in the calls locating on to ground; be followed Thompson Lang No. 399. v. up taking appellant, instead but don, 931; Tex. 87 28 S. W. Williams v. pointing survey separately out what each McLeroy, Lewright, 251; Upshur County 135 W. v. by committed to be the error he conceives us sues and 1013; Keystone 101 S. W. Mills locating is- con fuses Co., Co. v. Peach Lumber River 96 S. W. 64. by attempting to discuss both at once salient features 399, therefore, To locate we must relating overlooking by run ner; east varas from cor It is said call in the field to each. that the 'south, places etc. east, notes with the call to run varas conflicts 399 point northeast corner at the 149 varas west line of be the east 399 to by of the corner marked Brauer for the 400, overlooking west the fact that the in northwest corner of No. and the south no call the field notes east corner of southwest corner of No. varas west of the 400,and that the law west by permit field us look to the notes of Brauer. unambiguous ambiguity in the. to create [2] There can be no doubt that No. 399. field notes of cannot extended westward take so as to While, held, as we have no calls strip such trolled, Its line is west con of No. 400 can be those field notes of No. 399 to read into the call for fully ambiguity, create an we point a for certain from which recognize it the fact that if can be shown X a “L. O. 10" dia. mkd. brs. N. W. 42 actually ran out that Bohme corrected actually varas.” That a corner located and a No. 399 drove stake made marked will control corner the call for another point 1,792 a a the further tance east of line, mistakenly which is assumed corner, point a but at 147 varas place, is well established. east, dis- then the call course and Mahoney, 611; Oliver v. 61 Tex. Gerald v. No. 399 Freeman, 201-204, the field notes of would 256; 4 S. W. Cox way Finks, 95; actual location of stake and Gault, to the v. 41 S. W. Burnett v. 268; Ward, mound. App. Taft v. Tex. Civ. 437; Lafferty Stevenson, While Brauer’s notes of No. 399 con- 124 S. v. Poerner, a that the statement northeast corner Koch v. tained 55 S. W. 386. he located north- [3] When was where the written Nos. of No. 399 by us, his letter constructed as comer above west indicated each exactly acreage nothing time he found has called for in its shows re spective patented north- that the was the to show testimony lies Reinhard between the bounda- vand & T. O. R. v. PATTERSON HOUSTON CO. county injured may 'present for such killed or it in the shows that made marks Bohme may brought, and, paid whore suit if is not by Brau- comer which could have heen found days, may or satisfied recover within certainly justified in con- er. The court was attorney’s suit the of such amount claim and an structing survey hy justice jurisdiction and dis- fee, course court had controversy; attorney’s amount in stituting part con- fee tance, giving acreage called for. the exact amount. (Sup.) 7 S. ease Moore Stewart [Ed. Note.—For other see Justices upon hy appellant, a fact relied Peace, § 166.] case, hy fur- no means and the evidence <gs^>141(2) Justices oe Peace Juris- hy a wheth- nish criterion er which to determine County Appeal. diction oe Court on appealed judgment supported justice Where a case is this case is county court, court risdiction though the latter has no evidence. justice jurisdiction, relating to [4] Much is said about rules controversy may the amount in be with- surveyor át made original jurisdiction the same- county of the court. time, application which has little or no see Justices of Peace, § 472.] case,, to the facts of this <@=»20 boundaries, and Error it was —Jurisdiction- No. 400 determines its oe Jurisdiction Lack Below. years aft made different some county justice were Where courts corrected. er the field notes of No. 399 were jurisdiction without to hear and determine

different.” Brauer’s field ton, Damon, and R. S. Neblett and Gordon the line of but also called called for Corsicana, appellants. both of A.W. bearing marked which the cor for a tree Corsicana, Tarver, appellee. fixed, and it clear ner seems and distance control marked corner TALBOT, appellee, The J. J. H. Patter- of the older the line son, justice suit instituted this overruled. motion is precinct Tex., county, of against Navarro appellant company railroad March, day , the 5th to recover dam- 19— ages alleged have been sustained rea- & T. R.C. PATTERSON. CO. v. HOUSTON injuries through negli- inflicted son of gence 7663.) (No. appellant two horses owned Appeals (Court Civil of Texas. Dallas. Dec. shipped appellee appellant’s over road Rehearing 1917.) Denied March Worth, Appellee Ft. Corsicana ®=v>44(8) oe the Peace 1.Justices Juris- chárged shipped one the horses so Controversy diction-Amount —Attor- ‘ injuries ney's inflicted died Eee. against injuries damage action $150; In an a railroad for the sum of reason transit, prayed wherein to horses injuries inflicted of the shipped the other horse attorney’s judgment fee, $197.50 $20 as damages sustained he had providing St. art. under Rev. any $47.50; day having that on the 20th person sum of Janu-- a bona fide claim for stock in all cases and KEY-NUMBER Indexes <®s»For

Case Details

Case Name: Polk v. Reinhard

Court Name: Court of Appeals of Texas

Date Published: Feb 28, 1917

Citation: 193 S.W. 687

Docket Number: No. 5797.

Court Abbreviation: Tex. App.