58 Tex. 655 | Tex. | 1883
This is a suit brought by plaintiff in error to recover thirty-six and two-thirds (36-f) acres of land, patented in April, 1881, and to which he has a chain of title.
The defendants claim that the land at and long before the date of plaintiff’s patent had been granted to J. C. Beil’s assignee, under ■ whom they hold. There is no question as to- the mesne conveyances of either party. The case was tried without a-jury.
The field notes of the Neil survey call to begin at the northwest' corner of the J. B. Alexander survey, which has as its northwest corner a known and established point in the Daniels east line, on which the Neil survey corners. Its south line is in part common to it and the J. B. and Samuel Alexander surveys. This south line is also well known, and its second corner, being its southeast corner, is carefully marked by bearing trees, etc., and is found on the ground and is called for at the point where this south line of the Neil survey intersects the east line of the Lyons survey, also a survey whose lines and corners are known. It then runs north with the Lyons east line to the southeast corner of the P. Price survey, where was established a corner common to the Neil and Price surveys, and on the Lyons east line, and also known. The line then runs west with Price’s south line until it reaches Price’s southwest corner, which is also known. It then runs north with Price’s west line until it strikes Price’s northwest corner, which is also carefully marked with bearing trees, etc., and well known, and is the point where this line last mentioned, being a line common to the Price and Neil surveys, intersects the south boundary line of the Woods grant of three-fourths (f) of a league, being an old and well-defined survey, cultivated and occupied for twenty-five or thirty years past, with its west line and corners all well known or very easy to be ascertained. From this last-named well known point in the south line of the Woods survey the Neil line runs west according to the calls of the patent, until it strikes the east line of the Horton survey, and there it has a corner in common with the Woods grant. This last line is in the prairie, but the patent calls for the corner in the east line of the Horton survey, giving course and distance, and this east line of the Horton, which is also the west line of the Woods survey, is a marked line, and is well known and easily found, and for many years fences have been built and farms laid out and inclosed with reference to its known locality, and the line can be easily traced on the ground, and the point where the Neil north line intersects it is capable of ascertainment. From this point, being the northwest corner of the Neil
The Beil survey is then closed, according to this theory of the plaintiffs, by running a line south, disregarding entirely the call in the Beil grant for the Horton east line, until the Daniels east line is reached, and then following the Daniels line, also a well-known line, to the point of beginning at J. B. Alexander’s northwest corner. If this is done, the calls in the Beil patent for its northwest corner in the east line of the Horton grant will be disregarded, as well as the call in the patent for the Horton east line as constituting a part of the west boundary line of the Beil grant. Prom this it would result that the small strip in controversy will be outside the boundaries of the Beil survey and would - belong to plaintiff. The reason given by the plaintiff in error for insisting on the location of the ground of the Beil survey in this manner, is that by it the Beil grant gets its full complement of land, and the survey closes properly and lawfully, whereas, if it is. extended according to the calls of the patent to the Horton east line, not only the call in the grant for distance must be disregarded, but that on running south along the Horton east line, instead of striking the Daniels east line as called for and then running with it according to the patent, we will
This is the only difficulty that exists in locating the Neil survey on the ground. It arose evidently from the fact that the surveyor, when establishing the Neil north line in the prairie, without probably tracing that line west beyond Price’s well-known northwest corner, assumed that the Horton east line was really nothing more than a continuous extension of the old Daniels east league line from its beginning point on the Lavaca river back in the prairie to the termination of the Horton east line.
It seems, however, from this record, as a matter of fact, that the Horton east line is two hundred and three (203) varas west of the Daniels east line, and hence the apparent difficulty in closing the Neil survey according to the calls in the patent without bringing it into conflict with the Daniels league.
"What rules of law, then, shall be applied to the facts in order to locate properly on the ground the Neil survey, for on its true location the whole case turns? The calls on the face of the Neil patent are such that to fulfil them all, the land inclosed within its metes and bounds must have corners and lines in common with the J. B. & S. Alexander, Lyons, Price, Woods, Horton and Daniels grants. This is apparent from the calls in the patent itself. It was clearly, from the terms used in that instrument, the purpose of the state to grant to Neil or his assignee all the land contained within the space between the boundaries of the seven above-named surveys, all of which were grants from the state, and their relative positions to each other on the ground known and well defined, when the Neil patent was issued.
The rules for the construction of grants, and for ascertaining their boundaries, which have from time to time been announced by the court and have been acted 'on in establishing their lines, are all designed for the purpose of carrying out the intention of the grantor.
The question here is, whether this survey ought not to be closed in the manner contended for by plaintiff, and the call in the Heil patent for a corner on the Horton east line disregarded and its true ■ northwest corner established in the prairie at a point two hundred and three (203) varas distant from that line ? If at the time of the grant to Heil,the Horton east line had never been run, or if it had not been marked and identified on the ground at that date, then the call in the patent for course and distance from the well-established northwest corner of the Price grant would prevail over the call for a mere hypothetical or imaginary line in the prairie. Booth v. Strippleman, 26 Tex., 436. But this is not at all the case here; the Horton east line is no imaginary line, but was an old line actually marked on the ground when the Heil patent was issued, and its location and close proximity to the line then being established was undoubtedly in the mind of the surveyor of the Heil land, who was then the authorized agent of the government employed to ascertain its location; and though this northwest corner itself was not in fact established on the ground, yet the fact that it was at the point in this old marked line where an extension of the boundary line common to the Woods and Heil grants would intersect it, made it very easy of ascertainment.
Hnder such circumstances, for the purpose of carrying out the intention of the grantor, this call for the Horton line must control the call for .distance, the last being in fact the weakest and most unreliable of all the classes of calls. McCown v. Hill, 26 Tex., 359; Stafford v. King, 30 Tex., 257.
Another rule of law that is also applicable to the facts of this case is, that where a survey calls, as does the Heil survey, for the adjacent grants that bound it, without dispute, upon four or more sides, and where five of the corners of such survey are established, the boundaries of such survey must be determined by the calls for the previous adjacent grants, and by a line run so as to establish the sixth and last corner as called for in the grant, and from that corner run the closing lines, disregarding both course and distance, if absolutely necessary, so as to embrace within the lines of the patent all the land lying between the adjacent surveys called for in the patent as constituting the outer boundaries of the grant. Jones v. Burgett, 46 Tex., 285; Duren v. Presberry, 25 Tex., 512; Anderson v. Stamps, 19 Tex., 460; Johns v. Schultz, 47 Tex., 579.
A call for a corner, which is ascertained by marked lines intersecting at such a corner, will prevail over a call for distance and quantity. Buford v. Gray, 51 Tex., 331.
Applying these rules to the case in hand, the district judge rightly held that the lands claimed by plaintiff under the patent to Spence had been previously appropriated, and constituted a part of the land inclosed within the limits of the grant to Neil. The judgment is affirmed.
Aeeirmed.