Stafford v. King

30 Tex. 257 | Tex. | 1867

Smith, J.

It is the duty of the surveyor to run round the land located and intended to be embraced by the survey and patent, and see that such objects are designated on it as will clearly point out and identify the locality and boundaries of the tract, and to extend a correct description of these, objects (natural and artificial, with courses and distances) into the field-notes of the survey, in order that they may be inserted in the patent, which will afford the owner, as well as other persons, the means of identifying the land that was in fact located and surveyed for the owner, [21 Tex., 20;] and until the reverse is proved, it will be presumed that the land was thus surveyed and boundaries plainly marked and defined. And if any object of a perishable nature, called for in the patent, be not found, the presumption will be indulged that it is destroyed or defaced; but if it be established, by undoubted evidence, that the land was not in fact surveyed, yet, as the omission was the fault of the government officer and not the owner, it would seem extremely unjust to deprive him of the land, by holding the patent to be void, if the land can, by any reasonable evidence, be identified. And if course and distance alone, from a defined beginning-point, will, with reasonable certainty, locate and identify the land, that will be held sufficient. (Newson v. Pryor’s Lessees, 7 Wheat., 7; 16 Tex., 440; 5 Monr., 159.) Then we must conclude that the position of the appellant, that a patent, without a survey having been made of the land, should be held void, cannot be sustained.

The main point in this case appears to be, whether the Mobly Rhone patent for six hundred and forty acres of land in fact covers any of the land claimed by the defendant below.

As has been intimated, it is the purpose of the government and the locator to select a particular tract of land and designate it from the mass of the public domain. (21 Tex., 21; 9 Tex., 103.) And hence the directions given by law to run round the land—in fact, point out and define upon it such natural objects, or .plain artificial marks, with courses and distances, by which the land can at all times be easily found and identified. Katural objects are monntains, lakes, rivers, creeks, rocks, and the like. Artificial objects are marked lines, trees, stakes, &c. A description of these objects and marks of identity should be faithfully transferred into the field-notes, and thence into the patent, to serve the purpose aforesaid; and in all future controversies in respect to the locus or boundaries of the tract, recourse must be had to these calls, and when they are all found and established in conformity with those set forth in the patent, the conclusion is almost irresistible that the tract of land covered by the patent is identified, and there can be little or no room for controversy about the boundaries of the land; but when all the calls of the patent cannot be found, or if found to be inconsistent with others, in whole or part, and leading to a different result or confusion, then it becomes important to look to the rules of law that must govern the action of the court and jury, in respect to the character and weight of the evidence to be considered by them in fixing upon and establishing the true boundaries of the survey.

It has been often said by this court that the general rules are, that the location should be governed, first, by natural objects or boundaries, such as rivers, lakes, creeks, &c.; second, artificial marks, such as marked trees, lines, stakes, &c.; and, third, course and distance.

The true and correct location of the land is ascertained by the application of all or any of these rules to the particular case. And when they lead to contrary results or confusion, that rule must be adopted which is most consistent with the intention apparent upon the face of the patent, read in the light of the surrounding facts and circumstances.

The rule stated by Chief Justice Marshall in Newson v. Pryor, 7 Wheat., 7, is, “that the most material and most certain calls shall control those which are less material and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control both course and distance.” (6 Tex., 502; 16 Tex., 110; 9 Tex., 103; 22 Tex., 594.)

Of all these indicia of the locality of the true line, as run by the surveyor, course and distance are regarded as the most unreliable, and generally distance more than course, for the reason that chain-carriers may miscount and report distances inaccurately, by mistake or design. At any rate, they are more liable to err than the compass. The surveyor may fall into an error in making out the field-notes, both as to course and distance,1 (the former no more than the latter,) and. the commissioner of the general land office may fall into a like error by omitting lines and calls, and mistaking and inserting south for north, east for west. And this is the work of the officers themselves, over whom the locator has no control. But when the surveyor points out to the owner rivers, lakes, creeks, marked trees, and lines on the land, for the lines and corners of his land, he has the right to rely upon them as the best evidence of his true boundaries, for they are not liable to change and the fluctuations of time, to accident or mistake, like calls for course and distance; and hence the rule, that when course and distance, or either of them, conflict with natural or artificial objects called for, they must yield to such objects, as being more certain and reliable.

There is an intrinsic justice and propriety in this rule, for the reason, that the applicant for land, however unlearned he may be, needs no scientific education to identify and settle upon his land, when the surveyor, who is the agent of the government, authoritatively announces to him that certain well-known rivers, lakes, creeks, springs, marked corners, and lines constitute the boundaries of his land. But it would require some scientific knowledge and skill to know that the courses and distances called for are true and correct, and with the aid of the best scientific skill mistakes and. errors are often committed in respect to the calls for course and distance in the patent. The unskilled are unable to detect them, and the learned surveyor often much confused.

Although course and distance, under certain circumstances, may become more important than even natural objects—as when, from the face of the patent, the natural calls are inserted by mistake or may be referred to by conjecture and without regard to precision, as in the case of descriptive calls—still they are looked upon and generally regarded as mere pointers or guides, that will lead to the true lines and corners of the tract, as, in fact, surveyed at first.

The identification of the actual survey, as made by the surveyor, is the desideratum of all these rules. The footsteps of the surveyor must be followed, and the above rules are found to afford the best and most unerring guides to enable one to do so.

There is another rule to be observed in estimating these natural and artificial calls. They are divided into two classes: descriptive or directory, and special locative calls. The former, though consisting of rivers, lakes, and creeks, must yield to the special locative calls, for the reason that the latter, consisting of the particular objects upon the lines or corners of the land, are intended to indicate the precise boundary of the land, about which the locator and surveyor should be, and are presumed to be, very particular; while the former are called for without any care for exactness, and merely intended to point out or lead a person into the region of neighborhood of the tract surveyed, (9 Yer., 55,) and hence not considered as entitled to much credit in locating the particular boundaries of the land when they come in conflict with special locative calls, and must give way to them.

In this case the southeast corner of the John R. Taylor survey appears to have been notorious in the neighborhood and well established. The line calling to run east three thousand one hundred and sixty varas, to the beginning-corner of the Mobly Rhone survey of six hundred and forty acres, when extended that distance, is unsupported by any natural or artificial call mentioned in the patent- or proved to have been made by the surveyor. When that line was run out by Armstrong, the distance and course called for, thence around the tract, the courses and distances called for in the patent, for the four corners and lines of the tract, not one single natural or artificial object called for in the patent could be found upon the ground at all corresponding with it, as described in the patent. But it is contended by the appellee that no survey was in fact made by the surveyor, and that the tract was surveyed by protraction, beginning at the Taylor southeast corner. To support the truth of this supposition, it must be admitted that the surveyor did not perform his duty; that the locative calls of the patent were never in fact made or found, and were falsely placed in the patent by the surveyor, or that they have, since the designation of them, been destroyed or defaced, and cannot now be found; while it must be admitted that Mud creek and Gamp creek, called for in the patent, are not liable to destruction, if it be admitted that all the marked trees may have been destroyed or defaced by accident or design.

There is no evidence adduced, except the admission of the plaintiff himself, that the survey was not in fact made, or that it was made by protraction; while, on the contrary, it has been most satisfactorily proved, that if the line east from Taylor’s corner be stopped at seven hundred and fifty varas from that point, thence following the courses and distances called for, we find every call of the patent on the ground, natural and artificial. Mud and Camp creeks are crossed, each twice, and a spring reached at the very points called for in the patent, the corner and bearing-trees also corresponding with the patent, fortified by course and distance. It is true, no witness has testified that these were the lines actually run by the surveyor for the Mobly Rhone survey. Some evidence tended to show it was surveyed for Reason Franklin. It may have been surveyed at the time for Franklin, but, like the Irby survey, which was transferred to Taylor, this may have been applied to the Mobly Rhone claim. The wonderful coincidence of the locative calls of the patent with the objects found here on the ground would appear to leave but little doubt that they were the true locative calls of the Mobly Rhone survey, and that there was a mistake in the length of the descriptive call of three thousand one hundred and sixty varas, and that its true length is seven hundred and fifty varas. The distance of this line is the least important or material of all the calls in the patent. It is directory or descriptive in its character, and forms no part of the boundary of the survey, and evidently was intended only to point and direct a person to the neighborhood in which the special locative calls could be found, and about its accuracy the parties may not have been very particular. And in this view we are of opinion this call should yield to the more specific calls found on the ground. It will be observed that if we hold that this line is correctly stated to be three thousand one hundred and sixty varas, we do not find one other solitary call of the patent on the ground; and we are asked to presume that the report of the calls in the patent were false, and that no survey was in fact ever made on the land; while, on the other hand, if we hold that this descriptive call of three thousand one hundred and sixty varas was a mistake in distance, and that its true length is only seven hundred and fifty, then we find every corner, bearing-tree, line, and the two creeks called for, all corresponding with the calls in the patent, in respect to identity and course and distance; and from the rules laid down it seems that we must hold the true length of that line to be seven hundred and fifty varas, and force it to yield to the more material and locative calls of the patent found upon the ground.

It is said that this same tract was surveyed for and patented to Franklin. This, we conceive, can be of but little importance in fixing upon the boundaries of the Shone survey. If it amounts to anything, it only proves that two patents have been issued for the same tract of land, which, by the by, has been very often done, but not often, perhaps, with lines corresponding so literally. But we do not think that at all affects the question of boundary involved in this case. Because Mobly Shone has secured a patent upon Franklin’s land, we cannot see how that can furnish any reason why he should take that of any other person in its stead.

The line from Taylor’s southeast corner we regard as a descriptive or directory call; and, if found to be in conflict with any of the locative calls found and identified upon the ground, then it must yield to them, as being more material and important.

We believe the charge of the court gave too much importance to the descriptive call of three thousand one hundred and sixty varas over those of a locative character; and that it did not present to the jury properly the rules that should govern them in establishing the boundaries of the Rhone survey; and that it erred in refusing the charge asked by the defendant in that respect, and should have granted the defendant a new trial on her motion.

The objection to reading the deposition of Trimble, for want of an affidavit that he was out of the limits of the county, was improperly overruled. (O. & W. Dig., Art. 464; 9 Tex., 339; 12 Tex., 111.)

The exceptions to the deposition of Crosby, in respect to the contents of records and papers in his office, should have been sustained. Copies were better evidence of these facts. (22 Tex., 293.)

The object of a verdict is to respond to and decide the issues between the parties upon the evidence adduced, and to declare the respective rights of the parties as involved in the issue with certainty, so that the judgment can be entered with like certainty, and the ministerial officers can carry it into execution, without determining additional facts. (20 Tex., 442; 22 Tex., 173.)

The issue here was not whether the plaintiff owned the land claimed in-the petition. The defendant did not deny such claim, but contended that the patent of the plaintiff did not embrace the land they claimed, and that it was located elsewhere; and the issue was, whether the land claimed under the Rhone patent conflicted with that claimed by the defendant. To this issue it seems the jury did not respond with that certainty required by law. The. verdict responded to the evidence adduced, (the patent,) but not to the issue which the patent was introduced to support.

The judgment is equally liable to objection. Instead of declaring the legal sequence of the verdict and the issues, it establishes the judgment; established and ratified the correctness of a survey made by A. J. Ooupland in 1852, by order of the district court in a former suit, which survey constituted no part of the pleadings or verdict. It would seem that the verdict of the jury left the issues and the rights of the parties where they were before the trial, and that the ministerial officers of the court cannot carry the judgment out without determining the fact whether the plaintiffs’ land really conflicts with that of the defendant, and to what extent.

If the defendant had proved continuous and adverse possession of the premises by herself and those she claimed under for three years before the institution of the suit, under the location and survey of the Power certificate, it is not seen why the defense of three years’ limitation failed her. But it is not clear to us that it was shown that the improvements made on the land in 1847 and 1848 were upon land common to both the location and the survey. As this case will go back for a new trial, and these doubts may be removed, therefore we will not now further discuss it.

There being error in the proceeding, therefore the judgment below is reversed, and the cause remanded for a new trial in conformity with this opinion.

Reversed and remanded.