Welder v. Carroll

| Tex. | Jan 15, 1867

Moore, C. J.

If the original grants, or so much of them as is contained in the present record, are to be regarded as appellant’s only evidence of title, it is very evident that there would be no sufficient ground for a reversal of the judgment. Standing alone, and unsupported by the production of the maps, or secondary evidence to supply their place, referred to by the commissioner and made a part of the grants for the identity and description of the land, we think, beyond dispute, the objection made by appellee to these grants, that they were v.oid for uncertainty, should have been sustained. The only description given of the land in the titles extended by the commissioner, which was before the court, is, after designating the quantity of land granted, the statement that it is “ contained within the surveys which one of the appointed surveyors made upon the Aransas creek, on the other side or right margin, in the figure indicated by the letters A, B, 0, D, E, comprehending seven and a half leagues, and whose particular map, authorized by me, shall be annexed to this title for the security of the party interested.” Bor is the defective description of the land, without this map, supplied by the designation of that for which the grantee asks in his petition, if it could be looked to for. this purpose, which, however, cannot ordinarily be done. The petition of Eelipe Boque Portillo asks merely for the land to which he was “ entitled, as a married man, beyond the creek of Aransas, extending on the other side with the empresario Power, by the lower part.” Evidently, therefore, in the absence of all evidence in respect to the map referred to in the title and its contents, and there being no proof of an actual survey of the land, it cannot be said that there was any evidence before the court of a grant of the particular land here in controversy, or any other designated part of the public domain. Without this map a surveyor could neither ascertain the locality of the grant nor determine its form.

“The entire description” (as is said in Boardman v. Reed, 6 Pet., 355) “in a patent must be taken, and the identity of the land ascertained by a reasonable construction of the language used. If there be a repugnant call, which by the other calls in the patent clearly appears to have been made through mistake, that does not make void the patent. But if the land granted be so inaccurately described as to render the identity wholly uncertain, it is admitted that the grant is void. (Mesick v. Sunderland, 6 Call., 297; Mann v. Taylor, 4 Jones, 272; Faulkenburg v. Truesdell, 5 Strob., 221.)

To have been consistent with its own ruling, therefore, in excluding the evidence upon which the appellants relied to identify the grants by the map, which they claim was made contemporaneously with the titles, the court should have held the grants void.

The material question in the case for our determination, therefore, is, whether the evidence to supply the map upon which appellants relied to identify the land should have been excluded; for as it has not, and certainly could not plausibly be, insisted that, if the title were accompanied by a map designating and describing the land with sufficient certainty, it would not be as valid and effectual as if such description were given in the body of the title, the mere fact that the grants are void, without the evidence which was sought to be supplied, is unimportant, if the court erroneously excluded it when offered.

The presumption in favor of the regularity of their acts and the proper discharge of their duties by the officers from whom these grants emanate and these maps should have been made, and the well-known custom in that section of country of thus designating and describing lands, fully justify and sustain the conclusion, that the grants under which the appellants claim are accompanied by maps properly and sufficiently describing the land to which the grantees are entitled. And as they are not now found within the titles, and are not in the general land office, their proper place of deposit, the length of time since these grants are made, the many mutations through which the country has passed since their date, and many incidents of destruction and loss to which both public and jDrivate records and muniments of title have been subject, especially in the section of country in which this land is situated, authorized appellee, esjDecially in the absence of an objection of his failure to allege the loss or destruction of the original maps, or to account for their non-production, to resort to secondary evidence of their contents. And we are of opinion, in view of the circumstances of the case, that the evidence offered by the appellants for this purpose should have been received. It must be inferred from the grants that an actual survey, or a platted one on a descriptive map, was made of these lands by Loupy, the surveyor for this part of the colony, at the date of the grants, and that such map was before the commissioner, and that he recognized its sufficiency for the purpose for which it was made, and ordered it, or copies of it,-to be attached to the several grants, as part of the evidence of the titles of the interested parties. The map upon which appellants rely was made by Loupy, the surveyor. It is of the same date with titles under which they claimed. The indorsement upon it, in the handwriting of the commissioner, of the word “ con^ ceridoleads to the conclusion that it was examined, approved, and acted upon by him. It shows upon its face, and by the notes of the surveyor, that it was made for the purpose of a grant of land to the parties through whom the appellants deraign their title. The diagram of the survey is marked with the letters mentioned in the grants as descriptive of the figure of the survey to which they refer.

These coincidences between this map and the one which should have been with the grants are quite sufficient to authorize the original map, now in the office of the district surveyor of Hueces county, to go to the jury, with the evidence adduced of its authenticity, for their determination, as a question of fact, whether it was either the map itself which accompanied the original grants or the original office plat, from which copies to go with such titles were to be taken; for if it be the latter, there is no doubt it may be resorted to, in the absence of the originals accompanying the grants, as evidence of the identity and boundaries of the survey. (Alexander v. Liveley, 5 Monr., 161; Mercer v. Bate, 4 J. J. Marsh., 339.)

Although it is true that if this map was either the original office plat by Loupy, the surveyor, or one which accompanied the grants, it is not, strictly speaking, now found in its proper place of deposit, and therefore appellants are not entitled to make evidence by a certified copy of it. But as it was shown to have been recognized and treated for a number of years, by the officers in whose custody it was, as pertaining to the records of their office, and as the same facts in reference to it were established, which would have been necessary if it had been brought before the court, and .as no good purpose, it seems, would have been subserved by bringing it from another county by a subpoena duces tecum, we think the examined copy, proved to be a fac simile of the original, should have been received.

The exclusion of this evidence requires a reversal of the judgment; but after it is admitted the-question still mnst be determined what land is embraced in the grants under which appellants claim, and how must the boundaries and extent of their survey be defined and ascertained. The material point in controversy between the parties to the present suit, is to fix the eastern boundary line of the seven and a half league survey to which appellants deraign title, and by which it is separated from the five an da half league tract in the name of Power & Hewitson. It is contended by appellees, and held by the court below, that as Portillo asks in his petition for lands bounded by the upper or western line of the empresario Power, by which reference is evidently made to this survey for the empresarios Power & Hewitson, for five and a half leagues, and although the Portillo grant is the elder title, it must commence on the western boundary of a survey of five and a half leagues, commencing at the junction of the Aransas and Chiltipin creeks, and up and between said streams, for quantity. On the other hand, appellants insist that they are entitled to fix the western boundary of the seven and a half league survey by ascertaining the boundaries of other grants which call to bound on it, and from the initial point thus ascertained to run down the Aransas for quantity, and thus determine the eastern line of their survey, although there may remain less than the quantum of land called for in the Power & Hewitson grant between such line and the junction of said streams, for the reason, as appellants say, that theirs is the oldest title, and that the other was a void and illegal grant.

In neither of these positions can we concur. The question for determination is neither the locality nor quantity of land to which either of the parties securing these several grants may have been entitled, but what amount of land was in fact granted to them, and what are its boundaries and limits? And if these are not in fact marked and defined by actual survey, where' does the law fix and define them ?

If the boundary line between these surveys was run out and marked upon the ground, and it can be ascertained and established by a re-survey, following the calls in the title and map forming a part of it and the ancient landmarks made for its identity by the original surveyor; or, if its locality can be proved by witnesses who can, from their personal knowledge, or on information derived from general reputation, or from its having been pointed out to them by the surveyor by whom it was run, or others who were present at the time or cognizant of the fact, (Stroud v. Springfield, Austin term, 1866,) [28 Tex., 649" court="Tex." date_filed="1866-12-15" href="https://app.midpage.ai/document/stroud-v-springfield-4890309?utm_source=webapp" opinion_id="4890309">28 Tex., 649,] this will fix and mark its position, although there may be a discrepancy between its position thus ascertained and that given it by the calls or plat on the grant. But if it cannot be thus established, it must be fixed where it is placed by survey of the-land, made in conformity with the well known rules by which a re-survey in such cases must be controlled.

The map, which is our only guide in finding the boundaries of the land which appellants claim, shows on its face that it was intended also as a descriptive plat and survey of the five and a half league tract for Power & Hewitson. The two surveys, therefore, must be treated as contemporaneous. Keither can claim any advantage over the other from the mere priority in the date of the final title. Kor can the boundary of one be enlarged by reason of the other being pronounced invalid by the courts years afterwards, if we could consider that matter in the present record. There appears, from an inspection of the map, no difficulty in ascertaining and laying down the external lines of the two surveys. The difficulty is in locating the dividing line between them, arising from the fact that there is not sufficient land contained within the external lines to satisfy the claims of both. In describing the seven and a half league survey, the division line is indicated by the letters C D, while in the triangular figure referred to, to designate the Power & Hewitson tract, the same line is called for by the letters OK. Yet an inspection of the map shows two parallel lines with these three letters. It cannot, therefore, be certainly told from the map which of these lines was intended by the surveyor as the divisional line.

If this line was in fact run out by the surveyor, it would, we think, be more reasonable to suppose that he has reference to the western of the two lines, as there would seem to be no difficulty, from the map and the notes of survey appended to it, in fixing this line upon the ground, while it does not seem possible to do so with the other. But from the fact that the Power & Hewitson tract is described in the notes upon the map by reference to the triangular figure said to be marked upon it, and the eastern of these two lines forms, in connection with other lines marked upon the map, nearly a triangle, we conclude that it must be the line intended by the surveyor to represent the boundary between the two tracts. The line, we think, was most badly, in fact never, run upon the ground, but was placed upon the map where, by a calculation from the surveys actually made, and the supposed meanders of the two streams by which the lands are bounded, the line should be found. But, although the map leaves it uncertain which of the two lines, marked 0, K, D, is the boundary between the surveys, or if, in fact, no such line was run or designated by the surveyor, the validity of the grants is not thereby impaired. It becomes necessary in such case that the line shall be determined by other calls. They are required to bound mutually on each other; as we have said, neither is entitled to a preference. The external lines of the two surveys can, no doubt, be easily ascertained. Within these lines the different grants call for thirteen leagues of land. If there be an excess in the quantity of land within these lines, it is, nevertheless, appropriated and covered by the grants, and should be shared between them in proportion to the respective amounts to which they are mutually entitled. And, on the other hand, if there be not sufficient to satisfy both surveys, the diminution must be borne by them in the same proportion. (Johnson v. Gresham, 5 Dana, 543; Smith v. Prewitt, 2 Marsh., 157.)

The objection to the deposition of the witness, Carlisle, tending to prove the locality of the boundary line from information given him by a surveyor, should have been sustained. While, as has been heretofore held by this court, hearsay evidence to establish ancient boundaries is, under proper circumstances, admissible, (Stroud v. Springfield, supra,) [28 Tex., 649,] it should be closely scrutinized, and received with proper caution. The evidence here proposed was much too vague and uncertain in respect to the locality of the line of which the witness speaks, as well as in respect to the source of his information, and the time and circumstances under which he acquired it.

The objection to the witness, Carroll, was properly overruled. He does not appear to have any legal interest in the result of the suit. Although liable to the appellants as a trespasser, if they are the owners of the land, the judgment in this case cafi be used as evidence neither for nor against him.

The judgment is reversed, and the cause

Remanded.